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                                   Appellate Court                          Date: 2017.01.04
                                                                            08:12:54 -06'00'




                       Barr v. Frausto, 2016 IL App (3d) 150014



Appellate Court       KEVIN BARR, Plaintiff-Appellant, v. DEANNA FRAUSTO and
Caption               THE CITY OF JOLIET, Defendants (The City of Joliet, Defendant-
                      Appellee).



District & No.        Third District
                      Docket No. 3-15-0014



Rule 23 order filed   September 2, 2016
Motion to publish
allowed               October 13, 2016
Opinion filed         October 13, 2016



Decision Under        Appeal from the Circuit Court of Will County, No. 13-L-355; the Hon.
Review                Michael J. Powers, Judge, presiding.



Judgment              Affirmed.



Counsel on            Adam J. Zayed, of Joliet, for appellant.
Appeal
                      Gregory Smith, of Joliet, and Michael D. Bersani, of Hervas, Condon
                      & Bersani, P.C., of Itasca, for appellee.
     Panel                    JUSTICE CARTER delivered the judgment of the court, with opinion.
                              Justices McDade and Schmidt concurred in the judgment and opinion.


                                                OPINION

¶1         Plaintiff, Kevin Barr, filed a suit for negligent property maintenance against defendants,
       Deanna Frausto and the City of Joliet (City), to recover damages for injuries he sustained on
       City property when he stepped into a hole on a grass-covered parkway and fell. Both
       defendants filed motions for summary judgment. After hearings, the trial court granted the
       motions. Plaintiff appeals, but only challenges the trial court’s grant of summary judgment for
       the City. We affirm the trial court’s judgment.

¶2                                                  FACTS
¶3         In July 2012, plaintiff and his wife went for a morning walk in Joliet, Will County, Illinois,
       near their home. Plaintiff was wearing running shoes, and he and his wife were walking on the
       sidewalk at a leisurely pace. A woman who was walking her dog on the same sidewalk
       approached from the opposite direction. Plaintiff and his wife stepped off the sidewalk and
       onto the grass-covered parkway (the grassy area in front of or to the side of a house, between
       the sidewalk and the road). The parkway was located to the side of Deanna Frausto’s residence
       and was owned by the City. While plaintiff was walking on the parkway, he stepped into a
       hole, fell, and injured his knee or leg.
¶4         In May 2013, plaintiff filed the instant negligent property maintenance action against
       Frausto and the City. The complaint was later amended. During pretrial proceedings, summary
       judgment was granted for Frausto after the trial court found that she did not owe a duty to
       prevent harm to others on property owned by the City.
¶5         After summary judgment was granted for Frausto, the City filed its own motion for
       summary judgment. The matter was fully briefed by the parties in the trial court. Attached to
       the parties’ filings were various supporting documents, including several depositions,
       photographs of the site and of the hole, and the affidavit of plaintiff’s expert witness. The
       evidence presented in those supporting documents can be summarized as follows.
¶6         Plaintiff testified in his deposition to many of the background facts set forth above. In
       addition to those facts, plaintiff stated that the accident occurred on a Sunday morning shortly
       after 7 a.m. The weather was nice that day, and it was sunny and completely light out. Plaintiff
       and his wife walked or rode their bikes on that same route about once a week when the weather
       permitted. Plaintiff and his wife had lived in that area for about six years, and plaintiff was
       familiar with the area, although he had never walked on that parkway before. Prior to that time,
       plaintiff had never seen anyone performing maintenance, doing construction, digging, or
       cutting the lawn on that particular parkway.
¶7         As plaintiff and his wife were walking on the sidewalk that morning and the woman was
       approaching from the other direction with her dog on a leash, plaintiff nudged or told his wife
       to move over onto the parkway. The dog was not barking, threatening, or menacing in any way,
       but the woman and her dog were taking up the entire sidewalk. Plaintiff and his wife both
       moved to the right onto the parkway. Plaintiff was closer to the sidewalk, and his wife was

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       closer to the road. That summer was very dry, and the grass on the parkway was like straw and
       was trampled down. As the woman with the dog went past, plaintiff took one or two more steps
       on the parkway and then stepped into the hole.
¶8         Plaintiff was wearing a size 9 or 9½ running shoe at the time and his entire foot and part of
       his leg went into the hole, up to his ankle or shin. The ground was dry and the hole was not
       muddy. Plaintiff fell forward and injured his knee or leg. The woman who was walking the dog
       did not stop, and plaintiff did not know who the woman was. Plaintiff’s wife had to help him
       because he could not pull his foot out of the hole. Plaintiff sat there for a short time while his
       wife went home and got the van. When she returned, plaintiff and his wife went home, and
       plaintiff put ice on the injured area. After a short time, plaintiff decided to go to the hospital.
¶9         Plaintiff did not know that the hole was there and had no idea how the hole had formed.
       Plaintiff was unsure whether anything had prevented him from seeing the hole that morning
       and stated that the grass might have been covering it. Plaintiff insisted that he was watching
       where he was going at the time of the injury and stated that he had only glanced at the dog for
       a moment. As a result of the accident, plaintiff missed a significant amount of time from work
       and suffered some lasting effects from his injury.
¶ 10       Deanna Frausto, the person who owned the house to the side of where the accident
       occurred, testified in her deposition that she lived at that location for the past 18 years. Frausto
       and her live-in boyfriend, Michael Trimmer, mowed, raked, and edged the lawn on that
       particular parkway. Frausto and Trimmer used a push mower to mow the grass in that area.
       During that time of summer, the weather was very hot and dry, and the grass had patches of
       brown and green areas. Frausto and Trimmer did not mow the grass as often during that time
       period because the grass was so dry. Although Frausto owned the house at that location, she
       did not own the parkway property in front of and to the side of the house.
¶ 11       Frausto first became aware of the hole on the parkway when she received a letter from
       plaintiff’s attorney after the injury occurred. Frausto had no knowledge of the hole in that
       location prior to receiving the letter and did not notice any other holes in the parkway. Upon
       checking, Frausto found a hole in the parkway to the side of her house and assumed that it was
       the hole to which the letter referred. In Frausto’s opinion, the hole looked like an oversized
       snake hole—it was small in width, probably not wide enough for her hand to fit inside of it, but
       was several inches deep. After she got the letter from plaintiff’s attorney, Frausto filled the
       hole in with dirt.
¶ 12       In the 18 years that Frausto had lived at that location, she had never seen anyone from the
       City or the utility companies working in the area where the hole was located. Frausto knew that
       the previous owners had a lot of trees in the yard but did not know if there was ever a tree in the
       parkway area that had been removed.
¶ 13       Michael Trimmer testified in his deposition that he was Frausto’s boyfriend and that he had
       lived with her at the residence in question for the past seven years. According to Trimmer, he
       was almost always the person who cut the grass at the residence and was the only person who
       had cut the grass at the residence that summer. Trimmer never noticed any holes in the
       parkway to the side of the residence, either before or after the incident in this case. Trimmer
       had never seen the hole in question or a photograph of the hole and had no idea where the hole
       was located or what the dimensions of the hole were. Trimmer did not notice an abundance of
       rabbits on the property and stated that they did not have any snakes on the property. To
       Trimmer’s knowledge, the City had never performed any work on that particular parkway.

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¶ 14        James Eggen testified in his deposition that he was the director of public utilities for the
       City and was responsible for maintaining the City’s water and sanitary system. Eggen had been
       with the City for 22 years and had a bachelor’s degree in mechanical engineering and master’s
       degree in structural engineering. According to Eggen, the City owned the parkways and was
       responsible for overseeing the right-of-way for the streets in those areas through its public
       works department. The mowing, raking, and general maintenance of the parkway areas,
       however, were the responsibility of each individual homeowner. Eggen’s department did not
       have a program for periodically inspecting the condition of the parkways for defects. If a
       complaint was received by the City regarding a dangerous condition on a parkway, the City
       would send out an inspector to investigate the complaint. Eggen checked his department’s
       records and found no indication that his department had performed any work at the address
       where the accident took place, at least not for the past four or five years for which the City
       maintained records. Eggen had seen photographs of the hole and speculated, based on rabbit
       holes he had found in his own yard, that the hole looked like a rabbit hole.
¶ 15        M. Gordon Brown, plaintiff’s expert witness on surveying, architecture, and premises
       liability, attested in his affidavit that he had reviewed photographs of the site, the relevant
       depositions, and some of the pleadings and discovery materials. Brown had also conducted an
       inspection of the site in May 2014. According to Brown, the location of the hole was still
       evident at the site at the time of his inspection. Brown opined in his affidavit that (1) the hole
       had been caused by the decaying process—a tree at that location had been cut down, the stump
       had decayed, and a hole had formed; (2) it appeared that at one time, there had been a row of
       trees at that location, and the hole was one of five or six holes and indentations that were
       aligned in a row at that site; (3) the hole in question constituted an unreasonably dangerous
       condition that was caused by the City; (4) that particular hole had been in existence at that
       location, in a conspicuous state, for no less than three years; (5) the entire row of holes was
       conspicuous and would have been conspicuous for at least 3 years prior to the occurrence; (6) it
       was not possible that Frausto or Trimmer, assuming that they were of sound mind, could have
       failed to be aware of the presence of the hole; (7) a casual observer of that parkway at the time
       of Brown’s inspection could easily detect the location of the hole and the other holes, simply
       by looking down in that area; (8) pedestrians, when walking, normally looked forward in the
       direction of movement and not at the ground just in front of their feet; (9) on the day of the
       occurrence, it would have been more difficult to observe the hole because the homeowner at
       that location had been letting the grass grow longer due to the dry summer; (10) the holes on
       the parkway and the hole giving rise to the occurrence would have or should have been noticed
       had any City employee walked by the area within three years of the occurrence; and (11) in
       saying that the hole looked like a rabbit hole, the City’s director of public utilities, James
       Eggen, lacked the knowledge to form a scientific opinion as to the cause of the hole.
¶ 16        A hearing was held on the City’s motion for summary judgment in November 2014. After
       listening to the argument of the attorneys, the trial court took the matter under advisement to
       give the parties an opportunity to present case law. At the next scheduled court date the
       following month, the trial court announced its ruling. The trial court found that plaintiff had
       failed to establish that the City had actual or constructive notice of the allegedly defective
       condition as was necessary to hold the City liable for the plaintiff’s injury. The trial court,
       therefore, granted the City’s motion for summary judgment. Plaintiff appealed.



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¶ 17                                              ANALYSIS
¶ 18        On appeal, plaintiff argues that the trial court erred in granting summary judgment for the
       City. Plaintiff contends that summary judgment should not have been granted because genuine
       issues of material fact existed as to (1) whether the City had constructive notice of the allegedly
       defective condition (the hole) in the grass-covered parkway and (2) whether the hole
       constituted an unreasonably unsafe condition. In support of that argument, plaintiff asserts first
       that the uncontroverted testimony (affidavit) of his expert witness—that the hole was
       conspicuous and had existed for at least three years—was sufficient to establish a genuine
       issue of material fact as to the issue of constructive notice, despite any evidence to the contrary.
       Second, plaintiff asserts that the uncontroverted testimony of his expert witness—that the hole
       constituted an unreasonably unsafe condition—was sufficient to establish a genuine issue of
       material fact as to that issue as well. For the reasons stated, plaintiff asks that we reverse the
       trial court’s grant of summary judgment for the City and that we remand this case for further
       proceedings.
¶ 19        The City argues that the trial court’s ruling was proper and should be upheld. In addition to
       disagreeing with plaintiff’s assertions listed above, the City contends first, on the issue of
       constructive notice, that it would be unreasonable to assume that the City should have
       discovered the hole in question where the hole was small and went unnoticed by the person
       (Frausto) who lived at that location and maintained that property for 18 years. To rule
       otherwise, according to the City, would be to place an unreasonable burden upon the City.
       Second, as to the issue of an unreasonably unsafe condition, the City contends that the hole in
       the grass-covered parkway was a customary condition for which the City could not be held
       liable and that plaintiff should have known that the parkway areas, being comprised of dirt and
       grass and not concrete, were easily susceptible to changes caused by the weather, animals, or
       normal erosion and commonly contained holes, bumps, grooves, undulations, and
       imperfections. For all of the reasons set forth, the City asks that we affirm the trial court’s grant
       of summary judgment in the City’s favor.
¶ 20        The purpose of summary judgment is not to try a question of fact but to determine if one
       exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment
       should be granted only where the pleadings and supporting documents, when viewed in the
       light most favorable to the nonmoving party, show that there is no genuine issue as to any
       material fact and that the moving party is clearly entitled to a judgment as a matter of law. 735
       ILCS 5/2-1005(c) (West 2014); Adams, 211 Ill. 2d at 43. Summary judgment should not be
       granted if the material facts are in dispute or if the material facts are not in dispute but
       reasonable persons might draw different inferences from the undisputed facts. Adams, 211 Ill.
       2d at 43. Although summary judgment is to be encouraged as an expeditious manner of
       disposing of a lawsuit, it is a drastic measure and should be allowed only where the right of the
       moving party is clear and free from doubt. Id. In appeals from summary judgment rulings, the
       standard of review is de novo. Id.
¶ 21        It has long been recognized that a municipality has a duty of care to maintain its parkways
       in a reasonably safe condition for limited pedestrian use. See Marshall v. City of Centralia, 143
       Ill. 2d 1, 7-9 (1991). A municipality’s tort liability is governed by the Local Governmental and
       Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102(a) (West 2014)).
       Burke v. Grillo, 227 Ill. App. 3d 9, 18 (1992). The Act’s purpose is to protect local
       governments and their employees from liability arising out of the operation of government. Id.

                                                     -5-
       The Act grants certain immunities and defenses to achieve that purpose. Id. The relevant
       section of the Act in this case, section 3-102, provides, in pertinent part, that a local public
       entity “shall not be liable for injury unless it is proven that it has actual or constructive notice of
       the existence of such a condition that is not reasonably safe in reasonably adequate time prior
       to an injury to have taken measures to remedy or protect against such condition.” 745 ILCS
       10/3-102(a) (West 2014).
¶ 22       In this particular case, there is no dispute that the City did not have actual notice of the hole
       in the parkway (the allegedly defective condition). The main issue before this court, therefore,
       is whether the City had constructive notice of the hole. See id. Although constructive notice is
       generally a question of fact to be resolved by the jury, it may be resolved by the trial court as a
       matter of law when the facts are not in dispute and only one reasonable inference can be drawn
       from the undisputed facts. Livings v. City of Chicago, 26 Ill. App. 3d 850, 854 (1975). For the
       purpose of section 3-102(a) of the Act, constructive notice is established when a condition has
       existed for such a length of time or was so conspicuous that public authorities, by exercising
       reasonable care and diligence, might have known of the condition. Burke, 227 Ill. App. 3d at
       18. Some of the factors a court considers in determining whether constructive notice exists are
       the length of time the condition existed and the conspicuity of that condition. Mtengule v. City
       of Chicago, 257 Ill. App. 3d 323, 329 (1993). Lapse of time, in and of itself, may be sufficient
       reason to impute constructive notice to a public entity under certain circumstances. Id. at 328.
       The party claiming constructive notice has the burden of proving constructive notice. Burke,
       227 Ill. App. 3d at 18.
¶ 23       Plaintiff in the instant case failed to satisfy that burden. Although plaintiff’s expert witness
       stated in his affidavit that the hole in the parkway was conspicuous and that it had existed for at
       least three years prior to the incident, the value of that testimony was completely undercut by
       the plaintiff’s own testimony when plaintiff stated that he had traveled that same route on his
       walk or bike ride once a week for the past several years and that he had never noticed the hole
       in that parkway. See Finley v. Mercer County, 172 Ill. App. 3d 30, 33-34 (1988) (the plaintiffs
       could not establish for the purpose of avoiding summary judgment that the defect existed for a
       sufficient time to charge the county with constructive notice of the defect because the
       plaintiffs’ testimony undercut the basic theory of their case). Indeed, plaintiff did not even see
       the hole on the date of the accident when he was walking on the parkway just before the injury
       occurred, despite the fact, as he insisted in his testimony, that he was watching where he was
       going. As for the remaining facts in the record on that issue, the homeowner at that location
       and her live-in boyfriend both testified that they were not aware of the hole in question, even
       though they had lived at that location for several years and had maintained the lawn on the
       parkway during that time period. Although the hole was deep, it was only about the size of a
       rabbit or a snake hole and was not large enough in diameter for the homeowner to even fit her
       hand into. Under the circumstances of the present case, we find that plaintiff failed to establish
       a genuine issue of material fact as to the issue of constructive notice. The trial court, therefore,
       properly granted summary judgment for the City. See Burke, 227 Ill. App. 3d at 17-19 (in a
       case where a 72-year-old woman was injured when she stepped into a hole, dip, or rut on a
       parkway next to a sidewalk and fell while chasing after her granddaughter’s ball, the appellate
       court held that summary judgment was properly granted for the city because the plaintiff failed
       to establish a genuine issue of material fact as to constructive notice, even though the hole in
       question was about 2½ feet long, 8 inches wide, and 4 inches deep and had existed for over a


                                                      -6-
       year); Pinto v. DeMunnick, 168 Ill. App. 3d 771, 774-76 (1988) (in a case where the plaintiff
       was injured when she fell into a sinkhole on a village parkway, the appellate court held that a
       directed verdict should have been granted for the village because the plaintiff failed to
       establish that the village had constructive notice of the hole, even though the hole was six to
       eight inches in diameter and five to six feet deep, was a reoccurring problem, and had recently
       reappeared, noting that it would have been “an unreasonable burden to place upon the village
       to expect it to inspect for holes in a parkway lawn, *** absent any notice that a defect in one of
       its systems might cause a dangerous condition on the parkway”).
¶ 24        Having reached that conclusion, we need not address the City’s other contention in support
       of its argument—that plaintiff failed to establish that the hole in question constituted an
       unreasonably unsafe condition for the purposes of the Act.

¶ 25                                       CONCLUSION
¶ 26      For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 27      Affirmed.




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