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Fennerty v. City of Chicago

Court of Appeals of Illinois, First District, First Division

May 18, 2015

JANET Y. FENNERTY, Plaintiff-Appellant,
v.
THE CITY OF CHICAGO, Defendant-Appellee

Page 738

Appeal from the Circuit Court of Cook County. No. 12 L 3200. Honorable Kathy M. Flanagan, Judge Presiding.

Affirmed in part and reversed in part. Cause remanded for further proceedings.

Law Offices of Robert B. Patterson, Ltd., Chicago, IL, (Robert B. Patterson, of counsel), for APPELLANT.

Stephen R. Patton, Corporation Counsel of the City of Chicago, Chicago, IL, (Benna Ruth Solomon, Myriam Zreczny Kasper and Jeffery A. Waldhoff, of counsel), for APPELLEE.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.

OPINION

HARRIS, Judge

Page 739

[¶1] Plaintiff, Janet Y. Fennerty, appeals the order of the circuit court granting summary judgment in favor of defendant, City of Chicago, on plaintiff's personal injury complaint. On appeal, plaintiff contends the trial court erred in granting summary judgment where (1) the property on which she sustained her injury is not " recreational property" within the meaning of section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-106 (West 2010)); and (2) her allegations raise a genuine issue of material fact regarding whether the city engaged in willful and wanton misconduct. For the following reasons, we reverse and remand for further proceedings.

[¶2] JURISDICTION

[¶3] The trial court granted summary judgment in favor of the city on February 26, 2014. Plaintiff filed her notice of appeal on March 11, 2014. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

[¶4] BACKGROUND

[¶5] On June 5, 2011, around 9:15 p.m., plaintiff was walking her dog and entered the large grassy area located between the two eastbound and two westbound lanes of the 2900 block of Logan Boulevard in Chicago. This area runs the length of Logan Boulevard and is dotted with trees. One end of this grassy area also has a bench. While walking in the grassy area, plaintiff tripped and fell over one of the metal electrical boxes installed to service the electric lights along Logan Boulevard. The boxes lead to underground vaults, which service the wires for the street lighting and are large enough to allow a person to enter. In her complaint, plaintiff alleged that the metal box and cover she tripped over was raised approximately three inches above the ground. Plaintiff sustained injuries consisting of a fractured right fibula and a severe sprain of her left ankle.

[¶6] In his deposition, city inspector Brendan Russell stated that the boxes were originally installed in the 1940s and 1950s to be level with the surrounding earth surface. Over the years, however, the earth settled around some of the boxes so that they were no longer level with the ground. He stated that he was aware that some of the boxes were not level with the ground, but the city did not have an inspection program to identify these boxes. Russell did not report his observations to the city. Documents obtained during discovery show that between July 28, 2006 and March 16, 2011, there were 30 electrical service requests for the 2900 block of Logan Boulevard, bringing ...


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