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Putman v. Village of Bensenville

February 19, 2003

ALBERT P. PUTMAN AND ARDELLE J. PUTMAN, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF BENSENVILLE, EAGLE CONCRETE CONTRACTORS, INC., AND JAMES J. BENES AND ASSOCIATES, INC. DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 98-L-680 Honorable John T. Elsner and James W. Jerz, Judges, Presiding.

The opinion of the court was delivered by: Justice Grometer

Unpublished

Plaintiffs, Albert P. Putman and Ardelle J. Putman, instituted an action in the circuit court of Du Page County following a fall that rendered Albert a quadriplegic. Plaintiffs named as defendants, among others, the Village of Bensenville (Bensenville or the Village), Eagle Concrete Contractors, Inc. (Eagle), and James J. Benes & Associates, Inc. (Benes). Eagle was a subcontractor hired on a road improvement project in Bensenville, and Benes was the engineering firm hired by the Village for the project. A number of other defendants settled or were granted summary judgment and are not parties to this appeal. Defendants moved for summary judgment. The trial court granted defendants' motions, and plaintiffs now appeal. For the reasons that follow, we affirm in part, reverse in part, and remand the cause.

I. BACKGROUND

On November 9, 1995, Albert was to attend a meeting at the Veterans of Foreign Wars (VFW) building in Bensenville. The meeting was to commence at 8 p.m. He arrived about 7:30 and parked in a lot across the street. As he approached the intersection to cross the street, he noted that the pedestrian crosswalk and traffic signals were working, but the overhead lighting at the intersection was not. Albert stated that the intersection was dark and shadowy. Albert pressed the pedestrian signal button and waited until the walk signal came on before crossing the intersection. When he was about halfway across the intersection, the signal changed to "don't walk." Albert related that he increased his pace "a trifle," but "didn't hurry that much." Albert acknowledged that he was familiar with the intersection due to the number of times he had previously traversed it, which he estimated at approximately 30. Albert stated that the signal appeared to be quicker than usual on the night of the accident. In fact, the signal had been damaged about three weeks earlier, and a temporary controller had been installed. This controller would give a pedestrian the walk signal for between 3 and 8 seconds and then allow an additional 15 seconds to cross the intersection.

On the VFW side of the intersection, Bensenville had installed a ramp to make the sidewalk handicapped accessible. The ramp consisted of a sloped portion of the sidewalk that came down to meet the road. There was a gutter at the base of the ramp. As Albert was leaving the roadway, he tripped on the front edge of the ramp where it adjoined the gutter. He fell forward and struck his head on a concrete parking block. As a result, he was paralyzed from the neck down. The record in this case is voluminous, and additional facts will be discussed as they pertain to the issues raised by plaintiffs.

Before proceeding to the merits of this appeal, we note that both Benes and Eagle have filed motions to strike portions of plaintiffs' brief. We ordered these motions taken with the case. The whole of Eagle's motion and a portion of Benes's are based on plaintiffs' failure to cite authority in support of some of their arguments, in contravention of Supreme Court Rule 341(e)(7) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7) (eff. October 1, 2001)). It is well established that points not supported by authority may be deemed waived. Groenings v. City of St. Charles, 215 Ill. App. 3d 295, 306 (1991). However, this principle is "an admonition to the parties and not a limitation upon the power of a reviewing court to address issues of law as the case may require." Mayfield v. ACME Barrel Co., 258 Ill. App. 3d 32, 37 (1994). Hence, we deny these motions and will apply the doctrine as we see fit in addressing the merits of this appeal. Benes also requests that a portion of plaintiffs' brief be stricken because it pertains to an order not mentioned in plaintiffs' notice of appeal (see 155 Ill. 2d R. 303(b)(2)). However, plaintiffs have voluntarily withdrawn this issue, rendering that portion of Benes's motion moot.

We also note that, except for Benes, all parties at times, and plaintiffs persistently, fail to comply with Supreme Court Rules 6 and 341(d) (145 Ill. 2d R. 6; Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(d) (eff. October 1, 2001)). These rules mandate that "c]itations of cases must be by title, to the page of the volume where the case begins, and to the pages upon which the pertinent matter appears in at least one of the reporters cited." (Emphasis added.) 145 Ill. 2d R. 6. The failure to abide by these rules is also sufficient to result in the waiver of an argument. See Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 927-28 (1992). We advise all appellate counsel to pay close attention to these rules in the future.

II. ANALYSIS

The trial court granted summary judgment in favor of all three defendants. As the issues pertaining to the separate defendants are discrete, we will address them separately. Because this cause comes to us following a grant of summary judgment, review is de novo. Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000). Summary judgment is appropriate only where no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Stewart v. Jones, 318 Ill. App. 3d 552, 557-58 (2001). The record must be construed liberally in favor of the party opposing the motion. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999). We will now turn to the merits of this appeal.

A. Bensenville

Among the grounds relied on by the trial court in granting Bensenville's motion for summary judgment was that any defect in the ramp was de minimis and thus could not support liability on the Village's behalf. As we find this issue dispositive, we need not address the alternate bases articulated by the trial court in support of its decision. The rule that a village has no duty to repair de minimis defects in its sidewalks is well established in this state. See Gillock v. City of Springfield, 268 Ill. App. 3d 455, 457 (1994); Hartung v. Maple Investment & Development Corp., 243 Ill. App. 3d 811, 815 (1993); Birck v. City of Quincy, 241 Ill. App. 3d 119, 121, 124-25 (1993); Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 604 (1957); Walter v. City of Rockford, 332 Ill. App. 243, 246, 251 (1947). This rule stems largely from the recognition that placing such a duty on a municipality would create an intolerable economic burden. See Gillock, 268 Ill. App. 3d at 457-58 ("The economic burden would be too great to require municipalities to repair every slight defect existing in the miles of sidewalk they maintain"); Birck, 241 Ill. App. 3d at 123. Quite simply, a municipality does not have a duty to keep a sidewalk in perfect condition at all times. Hartung, 243 Ill. App. 3d at 814. Because the existence of a duty is a question of law, it is an issue that properly can be resolved in a motion for summary judgment. Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 154 (1992); see also Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1023 (1997) (holding that the de minimis rule renders minor defects in a sidewalk not actionable as a matter of law).

In the instant case, the evidence, viewed in the light most favorable to plaintiffs, shows that there was a one-inch lip between the ramp and the gutter. Plaintiffs' expert, Paul Box, produced a diagram showing this change in elevation. The upper half of the inch reflected the distance where the ramp sloped downward, and only the lower half was perpendicular to the gutter. Defendants produced testimony indicating that the lip was smaller; however, as this appeal involves a summary judgment, we must accept the testimony of plaintiffs' expert. We also note that Albert estimated the distance from the lowest point in the gutter to the ramp at two to three inches. This measurement is not relevant, as Albert asserts that he tripped on the front edge of the ramp. Moreover, it is not surprising that, to allow for drainage, the lowest point of the gutter was somewhat lower than the ramp.

Thus, for the purpose of resolving this issue, we will assume that a one-inch lip existed at the front edge of the ramp. Numerous cases have held that such defects fall within the de minimis rule. See, e.g., Birck, 241 Ill. App. 3d at 121 (defect of 1 7/8 inches); Warner v. City of Chicago, 72 Ill. 2d 100, 104 (1978) ("Turning to the facts in the case before us, 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"); Walter, 332 Ill. App. at 246 (one-inch defect). In fact, the Fourth District has noted that, generally, the point at which liability attaches in such cases is when the defect approaches two ...


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