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Cook v. The Village of Oak Park

Court of Appeals of Illinois, First District, Second Division

November 19, 2019

KRISTA M. COOK, Plaintiff-Appellant,
THE VILLAGE OF OAK PARK, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County No. 2016 L 064007 The Honorable Cheyrl D. Ingram, Judge Presiding.

          Attorneys for Appellant: Adam J. Zayed and Julian D. Hoshell, of Joliet, for appellant.

          Attorneys for Appellee: Paul L. Stephanides and Rasheda Jackson, of Oak Park, for appellee.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion.


          LAVIN, JUSTICE

         ¶ 1 Plaintiff, Krista M. Cook, was injured when she tripped and fell on an uneven seam in a sidewalk owned by defendant, the Village of Oak Park (Village). Due to her injuries, plaintiff filed a premises liability action against the Village, alleging, in the main, that it negligently maintained the sidewalk by failing to repair the defect. The Village moved for summary judgment, asserting that plaintiffs claim was not actionable because the defect was de minimis and, alternatively, that the Village was immune from liability pursuant to section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3- 102(a), (b) (West 2016)). The circuit court ultimately granted the motion and entered summary judgment in favor of the Village. For the reasons that follow, we reverse.

         ¶ 2 BACKGROUND

         ¶ 3 The following facts were gleaned from the parties' pleadings, depositions, affidavits and other supporting documents that were all presented to the court below.

         ¶ 4 In the evening on July 22, 2015, plaintiff was walking home after work when her foot suddenly hit a piece of concrete, causing her to trip and fall onto the sidewalk, which was located on Lombard Avenue. It was a dry, dark midsummer night. There were no streetlights within 50 feet of the sidewalk even though it was often frequented by pedestrians due to its close proximity to a bustling outdoor park. Plaintiff fell forward onto her right shoulder and hit her head, temporarily losing consciousness. When she regained consciousness, plaintiff was unable to walk and began to vomit uncontrollably. Eventually, a man helped her to a nearby porch where she waited until a taxicab arrived. Plaintiff went to the emergency room and was diagnosed with a concussion, separated shoulder and a broken collarbone.

         ¶ 5 The next morning, plaintiff drove to the location of the incident with her mother, Ella Fahlstrom, where they met Officer Michael Greet, an evidence technician for the Village. After plaintiff filed a police report, she directed Fahlstrom and Greet to the area where she fell. They proceeded to take photographs and measurements of the deviation in the sidewalk while plaintiff observed them from her vehicle due to her injuries. According to plaintiff, she told Fahlstrom where to take the photograph since she "knew where to go." Meanwhile, the Village repaired the sidewalk.

         ¶ 6 Over the next year, plaintiff underwent three clavicle surgeries, which included attaching a permanent screw to her collarbone, among other things. And even though she underwent extensive physical therapy, plaintiff still has not regained full use of her right arm. Consequently, she was unable to perform her duties at work, resulting in her termination.

         ¶ 7 After her fall, plaintiff filed the present complaint, alleging that the Village's negligence in failing to repair the sidewalk defect was the direct and proximate cause of her injuries.

         ¶ 8 At the time of the incident, the Village had in place a sidewalk replacement program to identify and repair defects larger than one inch. William McKenna, the Village's engineer, testified that the sidewalk where plaintiff fell had previously been repaired in 2012 due to "an elevation displacement between sidewalk squares." But, only a year later, there was another displacement in the same location according to Ted Brunson, who lived directly behind the sidewalk. Brunson testified that "the two slabs were quite uneven." He further testified that Village personnel were in front of his house "more than ten times," yet they did not repair the sidewalk until plaintiff fell two years later.

         ¶ 9 In her deposition, plaintiff testified that the deviation in the sidewalk was "over two inches." On the other hand, Greet testified that it was "between an inch and a quarter and an inch and a half," based on the ruler in his photograph. However, Greet noted that his measurement did not account for the gap on the bottom of the ruler, conceding ...

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