Zameer v. City of Chi.

• Decision Date: 19 July 2013
• Docket Number: Docket No. 1–12–0198.
• Citation: 994 N.E.2d 657,373 Ill.Dec. 888,2013 IL App (1st) 120198
• Parties: Shaheen ZAMEER, Plaintiff–Appellant, v. The CITY OF CHICAGO, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 120198

994 N.E.2d 657

373 Ill.Dec. 888

Shaheen ZAMEER, Plaintiff–Appellant,

v.The CITY OF CHICAGO, Defendant–Appellee.

Docket No. 1–12–0198.

Appellate Court of Illinois, First District, Fifth Division.

July 19, 2013.

Jeffrey Friedman, of Law Office of Jeffrey Friedman, P.C., of Chicago, for appellant.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Christopher S. Norborg, Assistant Corporation Counsel, of counsel), for appellee.

OPINION

Justice TAYLOR delivered the judgment of the court, with opinion.

[373 Ill.Dec. 890]¶ 1 Summary judgment in defendant's favor was affirmed where there was insufficient evidence of either actual or constructive notice to the city of the height difference in the sidewalk prior to the plaintiff's fall.

¶ 2 The trial court granted defendant's motion for summary judgment. On appeal, plaintiff contends that summary judgment should be vacated because there was sufficient evidence such that there was a material issue of whether defendant had notice and therefore merited a jury trial and was not proper for summary judgment.

¶ 3 BACKGROUND

¶ 4 Plaintiff Shaheen Zameer filed a complaint against the city of Chicago on November 8, 2010, alleging that on September 2, 2010, she tripped and fell at or about 6017 North Sacramento Avenue in the city of Chicago due to a differential in height between two sidewalk slabs. She was walking with her daughter when she fell. An ambulance brought her to the hospital where she was found to have sustained a broken wrist, requiring surgery, as well as contusions and abrasions to her face, hands and knees.

¶ 5 Plaintiff claimed the city had a duty to exercise reasonable care in maintaining public sidewalks for their intended purpose. She further claimed the city failed to maintain the sidewalk in a reasonably safe condition. Plaintiff also claimed the sidewalk crack upon which she tripped constituted an unreasonably dangerous defect because the degree of the disparity in the elevation along the surface of the sidewalk was approximately two inches. The city filed its answer, asserting, among other affirmative defenses, that it was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Act) because it did not have notice before plaintiff's fall of the defect that allegedly caused her injuries. 745 ILCS 10/3–102(a) (West 2010).

¶ 6 The parties proceeded to discovery. On June 2, 2012, plaintiff testified that the raised slab of sidewalk was about two inches higher than the adjacent slab. She also produced photographs of the defect and surrounding area. On June 23, 2011, John Errera, a civil engineer with the city's department of transportation, having looked at the photo's, testified that there is no way to tell when the defect that allegedly caused plaintiff's injuries came into existence.

¶ 7 On July 9, 2011, defendant produced customer service request system query detail reports from its 311 call system by order of the court. These reports detail all service requests received from January 1, 2005 to the date of the accident, covering addresses from 6017 to 6021 North Sacramento. The records contain a June 29, 2005, report of a crack in the sidewalk in front of the residence at 6021 North Sacramento. In addition, on July 11, 2005, there was a report of a sidewalk crack in the sidewalk at 6019 North Sacramento.

¶ 8 Defendant's records additionally show that on August 27, 2008, a contractor called Sumit Construction completed a sidewalk replacement project at 6021 North Sacramento Avenue. The work permit authorized the contractor to replace 60 sidewalk slabs. The records show that Sumit Construction received payment for this project on December 19, 2008.

¶ 9 On September 21, 2011, the city filed a motion for summary judgment. On December 16, 2011, after being fully briefed, the trial court granted the city's motion for summary judgment, finding no evidence of either actual or constructive notice of the height differential in the sidewalk at 6017 North Sacramento prior to the plaintiff's fall. Thus, plaintiff's entire cause of action was dismissed pursuant to the granting of the summary motion.

¶ 10 ANALYSIS

¶ 11 On appeal from that judgment, plaintiff contends that issues of material fact exist with respect to both actual and constructive notice, so that summary judgment for defendant was improper. The parties supplemented the record on appeal with two more photographs of the defect. Defendant contends plaintiff failed to adduce evidence sufficient to create a genuine issue of material fact as to whether the city had actual and/or constructive notice. We agree with defendant.

¶ 12 The purpose of summary judgment is not to try a question of fact, but to determine whether a genuine issue of material fact actually exists. Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill.2d 294, 305, 297 Ill.Dec. 319, 837 N.E.2d 99 (2005). Summary judgment is appropriate when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2–1005(c) (West 2010). We review a ruling on summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992); Judge–Zeit v. General Parking Corp., 376 Ill.App.3d 573, 578, 314 Ill.Dec. 922, 875 N.E.2d 1209 (2007). De novo review means that we examine the evidence unconstrained by the reasoning of the trial court. Merca v. Rhodes, 2011 IL App (1st) 102234, 355 Ill.Dec. 642, 960 N.E.2d 85 (citing John E. Reid & Associates, Inc. v. Wicklander–Zulawski & Associates, 255 Ill.App.3d 533, 538–39, 194 Ill.Dec. 232, 627 N.E.2d 348 (1993), citing Outboard Marine, 154 Ill.2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204).

¶ 13 A party is entitled to summary judgment where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2–1005(c) (West 2010); see Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt. Id. Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Pyne v. Witmer, 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304 (1989); Outboard Marine, 154 Ill.2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204. The documents are construed strictly against movant and in the light most favorable to the nonmovant. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995); Hartz Construction Co. v. Village of Western Springs, 2012 IL App (1st) 103108, 358 Ill.Dec. 680, 965 N.E.2d 1159.

¶ 14 Plaintiff argues that the city had actual notice of the defect based upon prior complaints about the sidewalk in 2005. Defendant contends that it has an affirmative defense of immunity under the Tort Immunity Act. The tort liability of a municipality is governed by the Tort Immunity Act. West v. Kirkham, 147 Ill.2d 1, 6, 167 Ill.Dec. 974, 588 N.E.2d 1104 (1992); see also Vesey v. Chicago Housing Authority, 145 Ill.2d 404, 411–12, 164 Ill.Dec. 622, 583 N.E.2d 538 (1991). The purpose of the Act is to protect local governments and their employees from liability arising out of the operation of government, and the Act therefore grants immunities and defenses. Vesey, 145 Ill.2d at 412, 164 Ill.Dec. 622, 583 N.E.2d 538. The Tort Immunity Act provides that a local public entity “shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3–102(a) (West 2010); Burke v. Grillo, 227 Ill.App.3d 9, 18, 169 Ill.Dec. 45, 590 N.E.2d 964 (1992). The burden of proving notice is on the party charging notice. Reed v. Eastin, 379 Ill. 586, 592, 41 N.E.2d 765 (1942); Buford v. Chicago Housing Authority, 131 Ill.App.3d 235, 246, 86 Ill.Dec. 926, 476 N.E.2d 427 (1985). The question of notice is generally one of fact, but becomes a question of law if all the evidence when viewed in the light most favorable to the plaintiff so overwhelmingly favors the defendant public entity that no contrary verdict could ever stand. Buford, 131 Ill.App.3d at 246, 86 Ill.Dec. 926, 476 N.E.2d 427;Cook v. Gould, 109 Ill.App.3d 311, 316, 64 Ill.Dec. 896, 440 N.E.2d 448 (1982); see also Hollembaek v. Dominick's Finer Foods Inc., 137 Ill.App.3d 773, 780, 92 Ill.Dec. 382, 484 N.E.2d 1237 (1985); Pinto v. DeMunnick, 168 Ill.App.3d 771, 774, 119 Ill.Dec. 579, 523 N.E.2d 47 (1988).

¶ 15 Where a condition has existed for such a length of time, or was so conspicuous, that authorities exercising due diligence might have known of it, the plaintiff has established notice. Buford, 131 Ill.App.3d at 246, 86 Ill.Dec. 926, 476 N.E.2d 427. Also, notice of facts that would put a reasonably prudent person on inquiry renders the authorities chargeable with knowledge of any fact that might have been discovered by a reasonable investigation. Palermo v. City of Chicago Heights, 2 Ill.App.3d 1004, 276 N.E.2d 470 (1971); Pinto, 168 Ill.App.3d at 774, 119 Ill.Dec. 579, 523 N.E.2d 47.

¶ 16 Section 3–102(a) requires proof that the defendant had timely notice of the specific defect that caused the plaintiff's injuries, not merely the condition of the area. Brzinski v. Northeast Illinois Regional Commuter R.R. Corp., 384 Ill.App.3d 202, 206, 323 Ill.Dec. 150, 892 N.E.2d 1142 (2008); Pinto, 168 Ill.App.3d...