Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Brian B. Duff, Judge.
WOOD, COFFEY, Circuit Judges, and GRANT, Senior District Judge*fn*
COFFEY, Circuit Judge. Plaintiff-Appellee Marva Cooks filed suit against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et. seq., for recovery for injuries sustained when she tripped on the sidewalk located in front of the Federal Archives and Records Center in Chicago, Illinois. The trial court entered judgment against the United States. We reverse.
On May 27, 1981, Marva Cooks visited the Federal Archives and Records Center ("FARC"), located in Chicago, Illinois, to obtain certain records. The weather that May 27, 1981 day was warm and sunny and the sidewalks and pavement around the FARC were dry. After parking her car, Cooks entered the FARC through the front entrance. Cooks failed to notice any defects in the sidewalk in front of the FARC while approaching the building. After approximately an hour and twenty minutes in the building, Cooks exited the building from the same front door. As she walked out of the building, traversing over the same path (sidewalk), the heel of her (Cooks') shoe caught on an elevated slab in the concrete sidewalk, causing her to fall. The elevation was located at the junction of two concrete slabs.
Subsequent to Cooks' fall, on May 27, 1981, Gregory Pomicter, the Chief of the Appraisal and Disposition Section of the FARC, investigated the scene of Cooks' accident in an attempt to determine the cause of her fall and measured the elevation of the sidewalk to be 1/2 inch at the point of her fall. His investigation further revealed no broken concrete or loose concrete or separations in the sidewalk which might have caused Cooks' fall.
After exhausting her administrative remedies pursuant to the Federal Tort Claims Act, Cooks filed suit against the United States. After a bench trial, the district court entered a judgment in favor of Cooks from which the United States appeals.
The issue presented for review is whether the district court erred in finding the United States liable for Cooks' injuries in that the government failed to repair a slight elevation in the sidewalk located in front of the FARC. Cooks bases her cause of action on the Federal Tort Claims Act, 28 U.S.C. § 2674, under which the United States waives it sovereign immunity from suits sounding in tort in certain instances.*fn1 Under the Federal Tort Claims Act the United States has waived its sovereign immunity to suits initiated by persons injured from sidewalks that it controls. Gilroy v. United States, 112 F. Supp. 664 (D. D.C. 1953); Smith v. United States, 237 F. Supp. 675 (D. D.C. 1965). Courts have also held that "the liability of the United States in respect to defects in the streets that it controls is the same as the liability of a municipality in the same jurisdiction, or the liability of any other political subdivision in control of streets." Gilroy v. United States, 112 F. Supp. 664, 666 (D. D.C. 1953). See also Smith v. United States, 237 F. Supp. 675, 676 (D. D.C. 1965). Cognizant of the fact that this accident happened in the state of Illinois, both parties agree that the liability of the United States with respect to defects in its sidewalks is the same as the liability of a municipality located in Illinois.
Under Illinois law, a municipality "has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used . . ." Ill. Rev. Stat. Ch. 85, para. 3-102 (1985). See also Tracy v. Village of Lombard, 116 Ill. App. 3d 563, 451 N.E.2d 992, 995, 71 Ill. Dec. 838 (Ill. App. 1983). "While a city has a duty to maintain its sidewalks in a reasonably safe condition, and slight inequalities in level or other minor defects are not actionable." Repinski v. Jubilee Oil Company, 85 Ill. App. 3d 15, 405 N.E.2d 1383, 1387, 40 Ill. Dec. 291 (Ill. App. 1980) See also Warner v. City of Chicago, 72 Ill. 2d 100, 378 N.E.2d 502, 19 Ill. Dec. 1 (1978); Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 145 N.E.2d 105 (1957). "The law is . . . that a city can be found guilty of negligence only when the defect in a sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it." Walter v. City of Rockford, 332 Ill. App. 243, 74 N.E.2d 903, 906 (Ill. App. Ct. 1947).
In Warner v. City of Chicago, 72 Ill. 2d 100, 378 N.E.2d 502, 19 Ill. Dec. 1 (1978), the plaintiff sustained injuries from a fall on a sidewalk on a snowy day. The Illinois Supreme Court stated the pertinent facts as follows:
"Plaintiff testified that while following a 'light path' made by other pedestrians along the edge of the sidewalk she stubbed her toe on a raised slab, lost her balance and fell. She stated that she did not see this defect as she was walking because it was covered by the snow. She denied slipping on the snow, asserting that tripping over the raised slab was the sole cause of her fall . . . A city investigator testified that he measure the height to be a maximum of 1 1/8 inches at the point where plaintiff's toe struck the slab, but this measurement was taken 5 1/2 years after the accident occurred."
Id. at 502-3. In deciding the case, the Illinois Supreme Court stated:
"we believe that the city's evidence, a 1 1/8-inch-maximum height variation, would indicate that, in view of the surrounding circumstances, no cause of action would lie due to the minimal nature of the defect. However, the 5 1/2-year delay in obtaining that measurement greatly reduces its probative value, and the jury could reasonably believe that plaintiff's testimony more accurately described the condition of the sidewalk at the time of the occurrence. In our judgment a reasonably prudent person should anticipate some danger to those walking upon a sidewalk in the condition described by plaintiff. Nor do we believe the jury's finding that plaintiff was exercising due care at the time of the accident was contrary to the manifest weight of the evidence. The defect was not apparent because it was obscured by the snow, and, in our opinion, it was not unreasonable for her to follow the path trod by others even though it traversed the raised slab. Were the defect uncovered and apparent to those upon the sidewalk, however, the question of ...