Appellate Court of Illinois,
First District,
Fifth Division.
LINH PHUNG HOANG NGUYEN, Plaintiff–Appellant,
v.
NHUTAM LAM and Hung Lam, Defendants–Appellees.
No. 1–16–1272
Opinion filed
November 3, 2017
November 3, 2017
Appeal from the
Circuit Court of Cook County. No. 14 L 9403, Honorable Eileen M. Brewer, Judge,
presiding.
Circuit Court of Cook County. No. 14 L 9403, Honorable Eileen M. Brewer, Judge,
presiding.
OPINION
JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
opinion.
*1 ¶ 1 Plaintiff
Linh Phung Hoang Nguyen filed this
personal injury action seeking damages for injuries she sustained when she
stepped on a catch basin in a backyard and the lid gave way. The Cook County
circuit court granted summary judgment in favor of defendants Nhutam and
Hung Lam, who owned the
property on which the catch basin was located.
Linh Phung Hoang Nguyen filed this
personal injury action seeking damages for injuries she sustained when she
stepped on a catch basin in a backyard and the lid gave way. The Cook County
circuit court granted summary judgment in favor of defendants Nhutam and
Hung Lam, who owned the
property on which the catch basin was located.
¶ 2 On appeal,
plaintiff contends that granting summary judgment was improper because she
presented enough evidence to create a genuine issue of material fact regarding
defendants’ constructive knowledge of the dangerous condition where the
testimony and photographs of the rusty catch basin lid and deteriorated
surrounding concrete showed those conditions had existed for a sufficient
length of time. Plaintiff also argues that she was not required to present
expert testimony about the duration of the dangerous condition.
plaintiff contends that granting summary judgment was improper because she
presented enough evidence to create a genuine issue of material fact regarding
defendants’ constructive knowledge of the dangerous condition where the
testimony and photographs of the rusty catch basin lid and deteriorated
surrounding concrete showed those conditions had existed for a sufficient
length of time. Plaintiff also argues that she was not required to present
expert testimony about the duration of the dangerous condition.
¶ 3 For the reasons
that follow, we reverse the judgment of the circuit court.
that follow, we reverse the judgment of the circuit court.
¶ 4 I. BACKGROUND
¶ 5 According to the
parties’ affidavits and deposition testimony, in 1989, defendants purchased a
two-story residential building at 1414 W. Winnemac Avenue in Chicago (the
property) and lived there until 2010. Defendants maintained the backyard of the
property and allowed their tenants to use the backyard, which contained a catch
basin with a metal lid. Defendant Mr. Lam noticed the catch basin in 1989 when he and his wife
purchased the property. The previous owner told Mr. Lam to look into the catch basin to make
sure it did not get clogged with sewage, but Mr. Lam never followed this instruction or
advice because sewage never came up the drain inside the home.
parties’ affidavits and deposition testimony, in 1989, defendants purchased a
two-story residential building at 1414 W. Winnemac Avenue in Chicago (the
property) and lived there until 2010. Defendants maintained the backyard of the
property and allowed their tenants to use the backyard, which contained a catch
basin with a metal lid. Defendant Mr. Lam noticed the catch basin in 1989 when he and his wife
purchased the property. The previous owner told Mr. Lam to look into the catch basin to make
sure it did not get clogged with sewage, but Mr. Lam never followed this instruction or
advice because sewage never came up the drain inside the home.
¶ 6 In 1992,
defendants hired professional cleaners to clean the well of the catch basin,
and no one told Mr. Lam that the catch
basin needed additional work. Defendants never performed any maintenance or
repairs to the catch basin or lid since they purchased the property in 1989,
and the catch basin has not been cleaned, inspected, or modified since 1992.
Mr. Lam regularly
inspected, cleaned, and swept the backyard, repaired anything that was broken,
cut the grass, and shoveled the snow. He walked over the catch basin, had seen
others walk across it, and never noticed any problem with the catch basin.
Before plaintiff’s injury, no one told him that the lid was loose, out of
place, or did not fit properly. Just a few weeks before plaintiff’s injury,
Mr. Lam cleaned the backyard area and did not
inspect the catch basin or notice any problem with it.
defendants hired professional cleaners to clean the well of the catch basin,
and no one told Mr. Lam that the catch
basin needed additional work. Defendants never performed any maintenance or
repairs to the catch basin or lid since they purchased the property in 1989,
and the catch basin has not been cleaned, inspected, or modified since 1992.
Mr. Lam regularly
inspected, cleaned, and swept the backyard, repaired anything that was broken,
cut the grass, and shoveled the snow. He walked over the catch basin, had seen
others walk across it, and never noticed any problem with the catch basin.
Before plaintiff’s injury, no one told him that the lid was loose, out of
place, or did not fit properly. Just a few weeks before plaintiff’s injury,
Mr. Lam cleaned the backyard area and did not
inspect the catch basin or notice any problem with it.
¶ 7 Plaintiff was
injured in August 2014, at about 6 p.m., while she was walking on the sidewalk
in defendants’ backyard. Specifically, plaintiff and her boyfriend had parked
his car in the garage located at the rear of the property and were carrying
groceries as they walked through the backyard toward his parents’ apartment.
When plaintiff’s left foot stepped onto the lid of the catch basin, it flipped
to a vertical position and caused her to fall into the well and straddle the
edge of the vertical metal lid. She sustained an injury to her groin area.
injured in August 2014, at about 6 p.m., while she was walking on the sidewalk
in defendants’ backyard. Specifically, plaintiff and her boyfriend had parked
his car in the garage located at the rear of the property and were carrying
groceries as they walked through the backyard toward his parents’ apartment.
When plaintiff’s left foot stepped onto the lid of the catch basin, it flipped
to a vertical position and caused her to fall into the well and straddle the
edge of the vertical metal lid. She sustained an injury to her groin area.
*2 ¶ 8 With the
help of her boyfriend, plaintiff went inside the apartment of his parents, and
his mother telephoned Mr. Lam.
The mother was outside when Mr. Lam arrived at the scene and saw that the lid was in the
vertical position. He pushed it down into place with his foot and stood on the
lid with both feet. The mother said that the lid was broken, but Mr. Lam said that it was not. Mr. Lam did not see any blood at the scene and
did not believe that plaintiff ever fell into the catch basin well.
help of her boyfriend, plaintiff went inside the apartment of his parents, and
his mother telephoned Mr. Lam.
The mother was outside when Mr. Lam arrived at the scene and saw that the lid was in the
vertical position. He pushed it down into place with his foot and stood on the
lid with both feet. The mother said that the lid was broken, but Mr. Lam said that it was not. Mr. Lam did not see any blood at the scene and
did not believe that plaintiff ever fell into the catch basin well.
¶ 9 Plaintiff went to
the hospital and was diagnosed with a vulvar hematoma, which required surgery.
Photographs of the catch basin were taken immediately after the occurrence. A
photograph of the lid in place on the catch basin shows that the top of the lid
is rusted and the circumference of the lid is worn and deteriorated. Moreover,
the circle concrete surface surrounding the catch basin is deteriorated and has
two large cracks and a thinner crack. Those cracks span the distance between
the outside rim of the concrete circle and its inside rim, which surrounds the
lid of the catch basin. Photographs of the lid tipped in a vertical position in
the catch basin show substantial corrosion of the concrete lip upon which the
metal lid must rest to remain stable and in place. In these photographs, the
rusted, uneven edge of the lid is more obvious. A photograph of the lid removed
from the catch basin shows substantial corrosion and deterioration of the lid,
the concrete surrounding the catch basin, and the concrete lip of the catch
basin.
the hospital and was diagnosed with a vulvar hematoma, which required surgery.
Photographs of the catch basin were taken immediately after the occurrence. A
photograph of the lid in place on the catch basin shows that the top of the lid
is rusted and the circumference of the lid is worn and deteriorated. Moreover,
the circle concrete surface surrounding the catch basin is deteriorated and has
two large cracks and a thinner crack. Those cracks span the distance between
the outside rim of the concrete circle and its inside rim, which surrounds the
lid of the catch basin. Photographs of the lid tipped in a vertical position in
the catch basin show substantial corrosion of the concrete lip upon which the
metal lid must rest to remain stable and in place. In these photographs, the
rusted, uneven edge of the lid is more obvious. A photograph of the lid removed
from the catch basin shows substantial corrosion and deterioration of the lid,
the concrete surrounding the catch basin, and the concrete lip of the catch
basin.
¶ 10 After plaintiff
was injured, Mr. Lam initially placed
a board and a couple of chairs over the catch basin. About two months later,
workers lifted the lid, spread cement around the lip of the catch basin, and
replaced the lid.
was injured, Mr. Lam initially placed
a board and a couple of chairs over the catch basin. About two months later,
workers lifted the lid, spread cement around the lip of the catch basin, and
replaced the lid.
¶ 11 In her negligence
complaint, plaintiff alleged that defendants failed to exercise reasonable care
in the ownership, maintenance, and inspection of their property. Specifically,
plaintiff argued that defendants failed to maintain the catch basin and lid in
a reasonably safe and proper condition, failed to conduct reasonable
inspections of the basin and lid, and failed to repair or replace the basin and
lid in a timely manner. Defendants denied any liability, and the parties
engaged in discovery.
complaint, plaintiff alleged that defendants failed to exercise reasonable care
in the ownership, maintenance, and inspection of their property. Specifically,
plaintiff argued that defendants failed to maintain the catch basin and lid in
a reasonably safe and proper condition, failed to conduct reasonable
inspections of the basin and lid, and failed to repair or replace the basin and
lid in a timely manner. Defendants denied any liability, and the parties
engaged in discovery.
¶ 12 Defendants moved
for summary judgment, asserting that none of the evidence gave rise to an inference
that they had actual or constructive notice of the dangerous condition.
for summary judgment, asserting that none of the evidence gave rise to an inference
that they had actual or constructive notice of the dangerous condition.
¶ 13 In response,
plaintiff argued that summary judgment was precluded because Mr. Lam admitted that he never inspected the
catch basin or lid after 1992 and a videotape and photographs clearly showed
the rusted condition of the catch basin lid and the deteriorated concrete
around the catch basin. Plaintiff argued that reasonable jurors could infer
that the extensive corrosion of metal and concrete indicated that the dangerous
condition existed for a sufficient duration to have given constructive notice
of the danger to defendants, who had regularly inspected and maintained the
backyard during the 22 years that elapsed since the catch basin was last
cleaned and up to the date of plaintiff’s injury.
plaintiff argued that summary judgment was precluded because Mr. Lam admitted that he never inspected the
catch basin or lid after 1992 and a videotape and photographs clearly showed
the rusted condition of the catch basin lid and the deteriorated concrete
around the catch basin. Plaintiff argued that reasonable jurors could infer
that the extensive corrosion of metal and concrete indicated that the dangerous
condition existed for a sufficient duration to have given constructive notice
of the danger to defendants, who had regularly inspected and maintained the
backyard during the 22 years that elapsed since the catch basin was last
cleaned and up to the date of plaintiff’s injury.
¶ 14 Defendants moved
to strike plaintiff’s videotape because it was not accompanied by an affidavit
to authenticate it and establish a foundation for its admission into evidence.
to strike plaintiff’s videotape because it was not accompanied by an affidavit
to authenticate it and establish a foundation for its admission into evidence.
¶ 15 The circuit court
granted defendants’ motion to strike the videotape based on plaintiff’s failure
to provide a proper foundation for the video. The circuit court also granted
defendants’ motion for summary judgment, rejecting plaintiff’s assertions that
the corroded concrete was visible and a layperson would be able to know that
such corrosion would have taken place over a considerable amount of time.
Citing Zameer v. City of Chicago, 2013 IL App (1st) 120198, 373
Ill.Dec. 888, 994 N.E.2d 657, the circuit court stated that plaintiff did not
present expert testimony concerning the duration of the defect and photographs
of general defects were not sufficient to impute notice to the defendants
without evidence of the specific defect.
granted defendants’ motion to strike the videotape based on plaintiff’s failure
to provide a proper foundation for the video. The circuit court also granted
defendants’ motion for summary judgment, rejecting plaintiff’s assertions that
the corroded concrete was visible and a layperson would be able to know that
such corrosion would have taken place over a considerable amount of time.
Citing Zameer v. City of Chicago, 2013 IL App (1st) 120198, 373
Ill.Dec. 888, 994 N.E.2d 657, the circuit court stated that plaintiff did not
present expert testimony concerning the duration of the defect and photographs
of general defects were not sufficient to impute notice to the defendants
without evidence of the specific defect.
*3 ¶ 16 Plaintiff
moved the circuit court to reconsider the order granting defendants summary
judgment. The circuit court denied the motion, stating that plaintiff failed to
meet her burden to provide facts showing that defendants had constructive
notice of the condition. The circuit court stated that the mere fact of the
rusty cover did not provide defendants with timely notice of the specific
defect that caused plaintiff’s injury and plaintiff did not present any expert
evidence about the duration of the defect. Plaintiff timely appealed.
moved the circuit court to reconsider the order granting defendants summary
judgment. The circuit court denied the motion, stating that plaintiff failed to
meet her burden to provide facts showing that defendants had constructive
notice of the condition. The circuit court stated that the mere fact of the
rusty cover did not provide defendants with timely notice of the specific
defect that caused plaintiff’s injury and plaintiff did not present any expert
evidence about the duration of the defect. Plaintiff timely appealed.
¶ 17 II. ANALYSIS
¶ 18 Plaintiff
contends that material issues of fact exist on the question of whether
defendants had constructive notice of the condition of the catch basin. She
notes that photographic evidence showed such severe deterioration of the
concrete and catch basin lid, which would have happened gradually over a
significant period of time. Moreover, Mr. Lam testified that he regularly inspected and maintained the backyard,
was aware of the catch basin, and had walked and stood on it. Accordingly,
plaintiff contends that whether defendants reasonably should have discovered
the dangerous condition is a question for the jury. We agree.
contends that material issues of fact exist on the question of whether
defendants had constructive notice of the condition of the catch basin. She
notes that photographic evidence showed such severe deterioration of the
concrete and catch basin lid, which would have happened gradually over a
significant period of time. Moreover, Mr. Lam testified that he regularly inspected and maintained the backyard,
was aware of the catch basin, and had walked and stood on it. Accordingly,
plaintiff contends that whether defendants reasonably should have discovered
the dangerous condition is a question for the jury. We agree.
¶ 19 This court
reviews a circuit court’s order granting summary judgment de novo. Seitz–Partridge
v. Loyola University of Chicago, 409 Ill.App.3d 76, 82, 350 Ill.Dec. 150,
948 N.E.2d 219 (2011). Summary judgment is appropriate only when the
“pleadings, depositions, and admissions on file, together with 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 2014). Because summary judgment is a drastic means of disposing
of litigation, it should be denied and the issue decided by the trier of fact
“where reasonable persons could draw divergent inferences from the undisputed
material facts or where there is a dispute as to a material fact.” Espinoza
v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113–14, 208
Ill.Dec. 662, 649 N.E.2d 1323 (1995). “The documents are construed strictly
against the movant and in the light most favorable to the nonmovant.” Zameer,
2013 IL App (1st) 120198, ¶ 13, 373 Ill.Dec. 888, 994 N.E.2d 657. The purpose
of summary judgment is to determine whether a genuine issue of material fact
exists, not to try a question of fact; accordingly, the circuit court may not
weigh the evidence or make credibility determinations. Thompson v.
Gordon, 241 Ill.2d 428, 438, 349 Ill.Dec. 936, 948 N.E.2d 39 (2011); AYH
Holdings, Inc. v. Avreco, Inc., 357 Ill.App.3d 17, 31, 292 Ill.Dec. 675,
826 N.E.2d 1111 (2005).
reviews a circuit court’s order granting summary judgment de novo. Seitz–Partridge
v. Loyola University of Chicago, 409 Ill.App.3d 76, 82, 350 Ill.Dec. 150,
948 N.E.2d 219 (2011). Summary judgment is appropriate only when the
“pleadings, depositions, and admissions on file, together with 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 2014). Because summary judgment is a drastic means of disposing
of litigation, it should be denied and the issue decided by the trier of fact
“where reasonable persons could draw divergent inferences from the undisputed
material facts or where there is a dispute as to a material fact.” Espinoza
v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113–14, 208
Ill.Dec. 662, 649 N.E.2d 1323 (1995). “The documents are construed strictly
against the movant and in the light most favorable to the nonmovant.” Zameer,
2013 IL App (1st) 120198, ¶ 13, 373 Ill.Dec. 888, 994 N.E.2d 657. The purpose
of summary judgment is to determine whether a genuine issue of material fact
exists, not to try a question of fact; accordingly, the circuit court may not
weigh the evidence or make credibility determinations. Thompson v.
Gordon, 241 Ill.2d 428, 438, 349 Ill.Dec. 936, 948 N.E.2d 39 (2011); AYH
Holdings, Inc. v. Avreco, Inc., 357 Ill.App.3d 17, 31, 292 Ill.Dec. 675,
826 N.E.2d 1111 (2005).
¶ 20 Property owners
have a duty to exercise ordinary care in maintaining their property in a reasonably
safe condition. Chapman v. Foggy, 59 Ill.App.3d 552, 555, 16
Ill.Dec. 758, 375 N.E.2d 865 (1978). Owners have a duty to exercise reasonable
care to discover defects or dangerous conditions existing on their property and
either correct them or give sufficient warning to enable those lawfully on the
land to avoid the danger. Id. It is not necessary for the
plaintiff to show that the owners had actual knowledge of the dangerous
condition. Id. If, in the exercise of ordinary care, the
owners should have discovered the condition, i.e., if they had
constructive notice of it, they may be held liable. Id. at
555–56, 16 Ill.Dec. 758, 375 N.E.2d 865. Constructive notice can be shown only
where the dangerous condition is shown to exist for a sufficient length of time
to impute knowledge of its existence to the defendants. Ishoo v.
General Growth Properties, Inc., 2012 IL App (1st) 110919, ¶ 28, 359
Ill.Dec. 472, 966 N.E.2d 1160; see also Pittman v. City of Chicago,
38 Ill.App.3d 1036, 1039, 350 N.E.2d 114 (1976) (the evidence was sufficient to
support a finding of constructive notice where a photograph showed the
defective condition of the sidewalk and the plaintiff testified that the
defective condition existed for the entire time—about six years—that she traveled
the block while employed at a factory). Illinois courts have ruled that it is
in the province of the trier of fact to determine whether the plaintiff has
established that the defect existed long enough to impute knowledge of its
existence to the defendant. Chapman, 59 Ill.App.3d at 556, 16
Ill.Dec. 758, 375 N.E.2d 865; Guenther v. Hawthorn Mellody, Inc.,
27 Ill.App.3d 214, 218, 326 N.E.2d 533 (1975).
have a duty to exercise ordinary care in maintaining their property in a reasonably
safe condition. Chapman v. Foggy, 59 Ill.App.3d 552, 555, 16
Ill.Dec. 758, 375 N.E.2d 865 (1978). Owners have a duty to exercise reasonable
care to discover defects or dangerous conditions existing on their property and
either correct them or give sufficient warning to enable those lawfully on the
land to avoid the danger. Id. It is not necessary for the
plaintiff to show that the owners had actual knowledge of the dangerous
condition. Id. If, in the exercise of ordinary care, the
owners should have discovered the condition, i.e., if they had
constructive notice of it, they may be held liable. Id. at
555–56, 16 Ill.Dec. 758, 375 N.E.2d 865. Constructive notice can be shown only
where the dangerous condition is shown to exist for a sufficient length of time
to impute knowledge of its existence to the defendants. Ishoo v.
General Growth Properties, Inc., 2012 IL App (1st) 110919, ¶ 28, 359
Ill.Dec. 472, 966 N.E.2d 1160; see also Pittman v. City of Chicago,
38 Ill.App.3d 1036, 1039, 350 N.E.2d 114 (1976) (the evidence was sufficient to
support a finding of constructive notice where a photograph showed the
defective condition of the sidewalk and the plaintiff testified that the
defective condition existed for the entire time—about six years—that she traveled
the block while employed at a factory). Illinois courts have ruled that it is
in the province of the trier of fact to determine whether the plaintiff has
established that the defect existed long enough to impute knowledge of its
existence to the defendant. Chapman, 59 Ill.App.3d at 556, 16
Ill.Dec. 758, 375 N.E.2d 865; Guenther v. Hawthorn Mellody, Inc.,
27 Ill.App.3d 214, 218, 326 N.E.2d 533 (1975).
*4 ¶ 21 In Baker
v. Granite City, 311 Ill.App. 586, 593, 37 N.E.2d 372 (1941), the plaintiff
was injured while walking on a catch basin cover that tilted and slid aside,
and the trial testimony indicated that at the time of the plaintiff’s injury
the catch basin flange was corroded and rusted and the bottom of the cover had
“a good deal of rust on it” and its lower edge was worn off “as thin as a piece
of cardboard.” Although no witness had testified about how long the
deteriorated condition had existed prior to the plaintiff’s injury, the court
stated that “[i]t is a matter of common knowledge that iron will often rust and
corrode when exposed to water and weather and that such rust and corrosion do
not generally occur to any considerable extent or degree in a short period of
time.” Id.
v. Granite City, 311 Ill.App. 586, 593, 37 N.E.2d 372 (1941), the plaintiff
was injured while walking on a catch basin cover that tilted and slid aside,
and the trial testimony indicated that at the time of the plaintiff’s injury
the catch basin flange was corroded and rusted and the bottom of the cover had
“a good deal of rust on it” and its lower edge was worn off “as thin as a piece
of cardboard.” Although no witness had testified about how long the
deteriorated condition had existed prior to the plaintiff’s injury, the court
stated that “[i]t is a matter of common knowledge that iron will often rust and
corrode when exposed to water and weather and that such rust and corrosion do
not generally occur to any considerable extent or degree in a short period of
time.” Id.
¶ 22 The Baker court
held that the trial court erred in granting the defendant’s motion for a
directed verdict because the jury could reasonably infer that the condition of
the catch basin at the time of the plaintiff’s injury had occurred gradually
over a considerable period of time and that the presence of such rust and
corrosion and the worn condition of the cover might have been discovered and
remedied by the defendant on reasonable inspection. Id. The
court concluded that it was a question of fact for the jury to determine
whether the “defective conditions were of such a character and had existed for
such a length of time that the defendant might have discovered and remedied
them, and to determine whether or not the defendant was negligent in this
respect.” Id. at 594, 37 N.E.2d 372.
held that the trial court erred in granting the defendant’s motion for a
directed verdict because the jury could reasonably infer that the condition of
the catch basin at the time of the plaintiff’s injury had occurred gradually
over a considerable period of time and that the presence of such rust and
corrosion and the worn condition of the cover might have been discovered and
remedied by the defendant on reasonable inspection. Id. The
court concluded that it was a question of fact for the jury to determine
whether the “defective conditions were of such a character and had existed for
such a length of time that the defendant might have discovered and remedied
them, and to determine whether or not the defendant was negligent in this
respect.” Id. at 594, 37 N.E.2d 372.
¶ 23 Here, there was
evidence from which a jury could conclude that the deteriorated condition of
the catch basin existed for a sufficient time that defendants should have been
aware of it. Specifically, Mr. Lam testified that
he lived at the property from 1989 until 2010, regularly inspected and maintained
the backyard, and had walked and stood on the catch basin. He was aware of the
catch basin since he and his wife purchased the property in 1989, but he never
inspected or maintained the catch basin or lid aside from having the well
cleaned in 1992. Although the previous property owner told Mr. Lam to look into the catch basin to make sure it did not get
clogged with sewage, Mr. Lam said that he
never followed that instruction or advice. Furthermore, the photographs show
that some deterioration of the catch basin (the cracked concrete surface and
rusted lid) was visible even when the lid was in place over the well of the
catch basin. Also, the photographs of the cracked and corroded concrete upon
which the rusty catch basin lid rested indicate that the catch basin’s
defective condition existed for a considerable amount of time because concrete
and metal deteriorate gradually. See id. at 593, 37 N.E.2d
372.
evidence from which a jury could conclude that the deteriorated condition of
the catch basin existed for a sufficient time that defendants should have been
aware of it. Specifically, Mr. Lam testified that
he lived at the property from 1989 until 2010, regularly inspected and maintained
the backyard, and had walked and stood on the catch basin. He was aware of the
catch basin since he and his wife purchased the property in 1989, but he never
inspected or maintained the catch basin or lid aside from having the well
cleaned in 1992. Although the previous property owner told Mr. Lam to look into the catch basin to make sure it did not get
clogged with sewage, Mr. Lam said that he
never followed that instruction or advice. Furthermore, the photographs show
that some deterioration of the catch basin (the cracked concrete surface and
rusted lid) was visible even when the lid was in place over the well of the
catch basin. Also, the photographs of the cracked and corroded concrete upon
which the rusty catch basin lid rested indicate that the catch basin’s
defective condition existed for a considerable amount of time because concrete
and metal deteriorate gradually. See id. at 593, 37 N.E.2d
372.
¶ 24 Construing the
documents, testimony, and photographs strictly against defendants and in the
light most favorable to plaintiff, we find that a genuine issue of fact exists
concerning whether defendants had constructive notice of the dangerous
condition. A reasonable trier of fact could infer from the cracked concrete
surface, corroded concrete lip, and rusty lid that the defective condition of
the catch basin existed for a sufficient duration to have given constructive
notice to defendants, who should have discovered the defect by the exercise of
reasonable care.
documents, testimony, and photographs strictly against defendants and in the
light most favorable to plaintiff, we find that a genuine issue of fact exists
concerning whether defendants had constructive notice of the dangerous
condition. A reasonable trier of fact could infer from the cracked concrete
surface, corroded concrete lip, and rusty lid that the defective condition of
the catch basin existed for a sufficient duration to have given constructive
notice to defendants, who should have discovered the defect by the exercise of
reasonable care.
¶ 25 Defendants argue
the circuit court properly awarded them summary judgment and rely on Zameer,
2013 IL App (1st) 120198, 373 Ill.Dec. 888, 994 N.E.2d 657, to support their
assertion that plaintiff failed to present sufficient evidence to create a
genuine issue of material fact about their constructive notice. In Zameer,
the plaintiff alleged that she sustained injuries requiring surgery when she
tripped and fell due to an approximately two-inch height disparity between two
sidewalk slabs. Id. ¶ 4. The defendant municipality asserted
it was immune from liability under the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3–102(a) (West
2010)) because it did not have notice of the raised sidewalk that caused her
fall in adequate time to have taken measures to repair the sidewalk. Zameer,
2013 IL App (1st) 120198, ¶¶ 5, 14–15, 373 Ill.Dec. 888, 994 N.E.2d 657.
“Section 3–102(a) [of the Tort Immunity Act] 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.” Id. ¶ 16. The
municipality moved for summary judgment, and the plaintiff argued, inter
alia, that photographs of the defective sidewalk were sufficient evidence
to show constructive notice. Id. ¶¶ 9, 22.
the circuit court properly awarded them summary judgment and rely on Zameer,
2013 IL App (1st) 120198, 373 Ill.Dec. 888, 994 N.E.2d 657, to support their
assertion that plaintiff failed to present sufficient evidence to create a
genuine issue of material fact about their constructive notice. In Zameer,
the plaintiff alleged that she sustained injuries requiring surgery when she
tripped and fell due to an approximately two-inch height disparity between two
sidewalk slabs. Id. ¶ 4. The defendant municipality asserted
it was immune from liability under the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3–102(a) (West
2010)) because it did not have notice of the raised sidewalk that caused her
fall in adequate time to have taken measures to repair the sidewalk. Zameer,
2013 IL App (1st) 120198, ¶¶ 5, 14–15, 373 Ill.Dec. 888, 994 N.E.2d 657.
“Section 3–102(a) [of the Tort Immunity Act] 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.” Id. ¶ 16. The
municipality moved for summary judgment, and the plaintiff argued, inter
alia, that photographs of the defective sidewalk were sufficient evidence
to show constructive notice. Id. ¶¶ 9, 22.
*5 ¶ 26 The Zameer court
held that summary judgment for the municipality was proper because the
plaintiff failed to present sufficient evidence to create a genuine issue under
the Tort Immunity Act as to whether the municipality had constructive notice of
the defect, i.e., that the condition existed for such a length of
time or was so conspicuous that authorities exercising reasonable care and
diligence might have known of it. Id. ¶¶ 19, 20, 22.
Specifically, both the plaintiff and her companion at the time of the injury
testified that they did not know how long the defect existed, and a civil
engineer employed by the municipality’s department of transportation “testified
that there is no way of telling how long the defect existed” and “it could have
developed in as little as three weeks.” Id. ¶¶ 20 –22.
held that summary judgment for the municipality was proper because the
plaintiff failed to present sufficient evidence to create a genuine issue under
the Tort Immunity Act as to whether the municipality had constructive notice of
the defect, i.e., that the condition existed for such a length of
time or was so conspicuous that authorities exercising reasonable care and
diligence might have known of it. Id. ¶¶ 19, 20, 22.
Specifically, both the plaintiff and her companion at the time of the injury
testified that they did not know how long the defect existed, and a civil
engineer employed by the municipality’s department of transportation “testified
that there is no way of telling how long the defect existed” and “it could have
developed in as little as three weeks.” Id. ¶¶ 20 –22.
¶ 27 Defendants’
reliance upon Zameer is misplaced because it is
distinguishable from the present case. In Zameer, the photograph of
the sidewalk slabs did nothing to indicate that the alleged defect—the two-inch
height difference between the slabs—had existed for a sufficient length of time
to constitute constructive notice, particularly in light of the civil
engineer’s testimony that the condition could have developed in as little as
three weeks. Here, in contrast, the photographs of the corroded and rusted
condition of the catch basin indicate, as discussed above, that such
deterioration of concrete and metal occurs gradually over time. Moreover,
Mr. Lam testified that the catch basin was not
inspected for 22 years.
reliance upon Zameer is misplaced because it is
distinguishable from the present case. In Zameer, the photograph of
the sidewalk slabs did nothing to indicate that the alleged defect—the two-inch
height difference between the slabs—had existed for a sufficient length of time
to constitute constructive notice, particularly in light of the civil
engineer’s testimony that the condition could have developed in as little as
three weeks. Here, in contrast, the photographs of the corroded and rusted
condition of the catch basin indicate, as discussed above, that such
deterioration of concrete and metal occurs gradually over time. Moreover,
Mr. Lam testified that the catch basin was not
inspected for 22 years.
¶ 28 Finally, we
reject defendants’ assertion that plaintiff was required to present expert
testimony about the duration of the defect. It is well settled that a trial
court exercises its discretion to allow a person “to testify as an expert if
his experience and qualifications afford him knowledge that is not common to
laypersons, and where his testimony will aid the trier of fact in reaching its
conclusions.” Thompson v. Gordon, 221 Ill.2d 414, 428, 303 Ill.Dec.
806, 851 N.E.2d 1231 (2006). Moreover, “[p]laintiffs are not required to prove
their case at the summary judgment stage.” Thompson, 241 Ill.2d at
438, 349 Ill.Dec. 936, 948 N.E.2d 39. Here, a trier of fact viewing the
photographs reasonably may discern the age and duration of the dangerous
condition of the catch basin as having been in existence for a very long time,
and such opinion is not within the sole province of an expert witness.
See Pittman, 38 Ill.App.3d at 1039, 350 N.E.2d 114 (rejecting the
municipality’s assertion that only a cement mason, contractor, or engineer was
qualified to express an opinion as to how long the dangerous sidewalk
condition, as depicted in a photograph, had existed).
reject defendants’ assertion that plaintiff was required to present expert
testimony about the duration of the defect. It is well settled that a trial
court exercises its discretion to allow a person “to testify as an expert if
his experience and qualifications afford him knowledge that is not common to
laypersons, and where his testimony will aid the trier of fact in reaching its
conclusions.” Thompson v. Gordon, 221 Ill.2d 414, 428, 303 Ill.Dec.
806, 851 N.E.2d 1231 (2006). Moreover, “[p]laintiffs are not required to prove
their case at the summary judgment stage.” Thompson, 241 Ill.2d at
438, 349 Ill.Dec. 936, 948 N.E.2d 39. Here, a trier of fact viewing the
photographs reasonably may discern the age and duration of the dangerous
condition of the catch basin as having been in existence for a very long time,
and such opinion is not within the sole province of an expert witness.
See Pittman, 38 Ill.App.3d at 1039, 350 N.E.2d 114 (rejecting the
municipality’s assertion that only a cement mason, contractor, or engineer was
qualified to express an opinion as to how long the dangerous sidewalk
condition, as depicted in a photograph, had existed).
¶ 29 III. CONCLUSION
¶ 30 The circuit court
erred in granting defendants summary judgment because plaintiff presented
sufficient evidence to show a genuine issue of material fact about whether
defendants had constructive notice of the dangerous condition of the catch
basin. A jury could infer from the testimony and photographic evidence that the
deteriorated condition of the catch basin and surrounding concrete occurred
over an extended period of time so that defendants would have discovered the
dangerous condition in the exercise of reasonable care. Accordingly, we reverse
the judgment of the circuit court and remand this cause.
erred in granting defendants summary judgment because plaintiff presented
sufficient evidence to show a genuine issue of material fact about whether
defendants had constructive notice of the dangerous condition of the catch
basin. A jury could infer from the testimony and photographic evidence that the
deteriorated condition of the catch basin and surrounding concrete occurred
over an extended period of time so that defendants would have discovered the
dangerous condition in the exercise of reasonable care. Accordingly, we reverse
the judgment of the circuit court and remand this cause.
¶ 31 Reversed and
remanded.
remanded.