Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 10 L 12704, Honorable Kathy M. Flanagan Judge Presiding.
JUSTICE TAYLOR delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Howse in the judgment and opinion.
¶ 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 ...