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                               Appellate Court                          Date: 2018.01.23
                                                                        15:45:06 -06'00'




                   Nguyen v. Lam, 2017 IL App (1st) 161272



Appellate Court   LINH PHUNG HOANG NGUYEN, Plaintiff-Appellant,                         v.
Caption           NHUTAM LAM and HUNG LAM, Defendants-Appellees.



District & No.    First District, Fifth Division
                  Docket No. 1-16-1272



Filed             November 3, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 14-L-9403; the
Review            Hon. Eileen M. Brewer, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Staver Law Group, P.C., of Chicago (Tyler Kobylski, of counsel), for
Appeal            appellant.

                  Bruce Farrel Dorn & Associates, of Chicago (Ellen J. O’Rourke,
                  Kenneth E. Klimczak, and Renee M. Mehl, of counsel), for appellees.



Panel             JUSTICE LAMPKIN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Reyes and Justice Hall concurred in the judgment
                  and opinion.
                                              OPINION

¶1       Plaintiff Linh Phung Hoang Nguyen filed this personal injury action seeking damages for
     injuries she sustained when she stepped on a catch basin in a backyard and the lid gave way.
     The Cook County circuit court granted summary judgment in favor of defendants Nhutam
     and Hung Lam, who owned the property on which the catch basin was located.
¶2       On appeal, plaintiff contends that granting summary judgment was improper because she
     presented enough evidence to create a genuine issue of material fact regarding defendants’
     constructive knowledge of the dangerous condition where the testimony and photographs of
     the rusty catch basin lid and deteriorated surrounding concrete showed those conditions had
     existed for a sufficient length of time. Plaintiff also argues that she was not required to
     present expert testimony about the duration of the dangerous condition.
¶3       For the reasons that follow, we reverse the judgment of the circuit court.

¶4                                        I. BACKGROUND
¶5       According to the parties’ affidavits and deposition testimony, in 1989, defendants
     purchased a two-story residential building at 1414 W. Winnemac Avenue in Chicago (the
     property) and lived there until 2010. Defendants maintained the backyard of the property and
     allowed their tenants to use the backyard, which contained a catch basin with a metal lid.
     Defendant Mr. Lam noticed the catch basin in 1989 when he and his wife purchased the
     property. The previous owner told Mr. Lam to look into the catch basin to make sure it did
     not get clogged with sewage, but Mr. Lam never followed this instruction or advice because
     sewage never came up the drain inside the home.
¶6       In 1992, defendants hired professional cleaners to clean the well of the catch basin, and
     no one told Mr. Lam that the catch basin needed additional work. Defendants never
     performed any maintenance or repairs to the catch basin or lid since they purchased the
     property in 1989, and the catch basin has not been cleaned, inspected, or modified since
     1992. Mr. Lam regularly inspected, cleaned, and swept the backyard, repaired anything that
     was broken, cut the grass, and shoveled the snow. He walked over the catch basin, had seen
     others walk across it, and never noticed any problem with the catch basin. Before plaintiff’s
     injury, no one told him that the lid was loose, out of place, or did not fit properly. Just a few
     weeks before plaintiff’s injury, Mr. Lam cleaned the backyard area and did not inspect the
     catch basin or notice any problem with it.
¶7       Plaintiff was injured in August 2014, at about 6 p.m., while she was walking on the
     sidewalk in defendants’ backyard. Specifically, plaintiff and her boyfriend had parked his car
     in the garage located at the rear of the property and were carrying groceries as they walked
     through the backyard toward his parents’ apartment. When plaintiff’s left foot stepped onto
     the lid of the catch basin, it flipped to a vertical position and caused her to fall into the well
     and straddle the edge of the vertical metal lid. She sustained an injury to her groin area.
¶8       With the help of her boyfriend, plaintiff went inside the apartment of his parents, and his
     mother telephoned Mr. Lam. The mother was outside when Mr. Lam arrived at the scene and
     saw that the lid was in the vertical position. He pushed it down into place with his foot and
     stood on the lid with both feet. The mother said that the lid was broken, but Mr. Lam said



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       that it was not. Mr. Lam did not see any blood at the scene and did not believe that plaintiff
       ever fell into the catch basin well.
¶9         Plaintiff went to the hospital and was diagnosed with a vulvar hematoma, which required
       surgery. Photographs of the catch basin were taken immediately after the occurrence. A
       photograph of the lid in place on the catch basin shows that the top of the lid is rusted and the
       circumference of the lid is worn and deteriorated. Moreover, the circle concrete surface
       surrounding the catch basin is deteriorated and has two large cracks and a thinner crack.
       Those cracks span the distance between the outside rim of the concrete circle and its inside
       rim, which surrounds the lid of the catch basin. Photographs of the lid tipped in a vertical
       position in the catch basin show substantial corrosion of the concrete lip upon which the
       metal lid must rest to remain stable and in place. In these photographs, the rusted, uneven
       edge of the lid is more obvious. A photograph of the lid removed from the catch basin shows
       substantial corrosion and deterioration of the lid, the concrete surrounding the catch basin,
       and the concrete lip of the catch basin.
¶ 10       After plaintiff was injured, Mr. Lam initially placed a board and a couple of chairs over
       the catch basin. About two months later, workers lifted the lid, spread cement around the lip
       of the catch basin, and replaced the lid.
¶ 11       In her negligence complaint, plaintiff alleged that defendants failed to exercise reasonable
       care in the ownership, maintenance, and inspection of their property. Specifically, plaintiff
       argued that defendants failed to maintain the catch basin and lid in a reasonably safe and
       proper condition, failed to conduct reasonable inspections of the basin and lid, and failed to
       repair or replace the basin and lid in a timely manner. Defendants denied any liability, and
       the parties engaged in discovery.
¶ 12       Defendants moved for summary judgment, asserting that none of the evidence gave rise
       to an inference that they had actual or constructive notice of the dangerous condition.
¶ 13       In response, plaintiff argued that summary judgment was precluded because Mr. Lam
       admitted that he never inspected the catch basin or lid after 1992 and a videotape and
       photographs clearly showed the rusted condition of the catch basin lid and the deteriorated
       concrete around the catch basin. Plaintiff argued that reasonable jurors could infer that the
       extensive corrosion of metal and concrete indicated that the dangerous condition existed for a
       sufficient duration to have given constructive notice of the danger to defendants, who had
       regularly inspected and maintained the backyard during the 22 years that elapsed since the
       catch basin was last cleaned and up to the date of plaintiff’s injury.
¶ 14       Defendants moved to strike plaintiff’s videotape because it was not accompanied by an
       affidavit to authenticate it and establish a foundation for its admission into evidence.
¶ 15       The circuit court granted defendants’ motion to strike the videotape based on plaintiff’s
       failure to provide a proper foundation for the video. The circuit court also granted
       defendants’ motion for summary judgment, rejecting plaintiff’s assertions that the corroded
       concrete was visible and a layperson would be able to know that such corrosion would have
       taken place over a considerable amount of time. Citing Zameer v. City of Chicago, 2013 IL
       App (1st) 120198, the circuit court stated that plaintiff did not present expert testimony
       concerning the duration of the defect and photographs of general defects were not sufficient
       to impute notice to the defendants without evidence of the specific defect.



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¶ 16       Plaintiff moved the circuit court to reconsider the order granting defendants summary
       judgment. The circuit court denied the motion, stating that plaintiff failed to meet her burden
       to provide facts showing that defendants had constructive notice of the condition. The circuit
       court stated that the mere fact of the rusty cover did not provide defendants with timely
       notice of the specific defect that caused plaintiff’s injury and plaintiff did not present any
       expert evidence about the duration of the defect. Plaintiff timely appealed.

¶ 17                                          II. ANALYSIS
¶ 18       Plaintiff contends that material issues of fact exist on the question of whether defendants
       had constructive notice of the condition of the catch basin. She notes that photographic
       evidence showed such severe deterioration of the concrete and catch basin lid, which would
       have happened gradually over a significant period of time. Moreover, Mr. Lam testified that
       he regularly inspected and maintained the backyard, was aware of the catch basin, and had
       walked and stood on it. Accordingly, plaintiff contends that whether defendants reasonably
       should have discovered the dangerous condition is a question for the jury. We agree.
¶ 19       This court reviews a circuit court’s order granting summary judgment de novo.
       Seitz-Partridge v. Loyola University of Chicago, 409 Ill. App. 3d 76, 82 (2011). Summary
       judgment is appropriate only when the “pleadings, depositions, and admissions on file,
       together with affidavits, if any, show that there is no genuine issue as to any material fact and
       that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2014). Because summary judgment is a drastic means of disposing of litigation, it
       should be denied and the issue decided by the trier of fact “where reasonable persons could
       draw divergent inferences from the undisputed material facts or where there is a dispute as to
       a material fact.” Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113-14 (1995).
       “The documents are construed strictly against the movant and in the light most favorable to
       the nonmovant.” Zameer, 2013 IL App (1st) 120198, ¶ 13. The purpose of summary
       judgment is to determine whether a genuine issue of material fact exists, not to try a question
       of fact; accordingly, the circuit court may not weigh the evidence or make credibility
       determinations. Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011); AYH Holdings, Inc. v.
       Avreco, Inc., 357 Ill. App. 3d 17, 31 (2005).
¶ 20       Property owners have a duty to exercise ordinary care in maintaining their property in a
       reasonably safe condition. Chapman v. Foggy, 59 Ill. App. 3d 552, 555 (1978). Owners have
       a duty to exercise reasonable care to discover defects or dangerous conditions existing on
       their property and either correct them or give sufficient warning to enable those lawfully on
       the land to avoid the danger. Id. It is not necessary for the plaintiff to show that the owners
       had actual knowledge of the dangerous condition. Id. If, in the exercise of ordinary care, the
       owners should have discovered the condition, i.e., if they had constructive notice of it, they
       may be held liable. Id. at 555-56. Constructive notice can be shown only where the
       dangerous condition is shown to exist for a sufficient length of time to impute knowledge of
       its existence to the defendants. Ishoo v. General Growth Properties, Inc., 2012 IL App (1st)
       110919, ¶ 28; see also Pittman v. City of Chicago, 38 Ill. App. 3d 1036, 1039 (1976) (the
       evidence was sufficient to support a finding of constructive notice where a photograph
       showed the defective condition of the sidewalk and the plaintiff testified that the defective
       condition existed for the entire time—about six years—that she traveled the block while
       employed at a factory). Illinois courts have ruled that it is in the province of the trier of fact

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       to determine whether the plaintiff has established that the defect existed long enough to
       impute knowledge of its existence to the defendant. Chapman, 59 Ill. App. 3d at 556;
       Guenther v. Hawthorn Mellody, Inc., 27 Ill. App. 3d 214, 218 (1975).
¶ 21       In Baker v. Granite City, 311 Ill. App. 586, 593 (1941), the plaintiff was injured while
       walking on a catch basin cover that tilted and slid aside, and the trial testimony indicated that
       at the time of the plaintiff’s injury the catch basin flange was corroded and rusted and the
       bottom of the cover had “a good deal of rust on it” and its lower edge was worn off “as thin
       as a piece of cardboard.” Although no witness had testified about how long the deteriorated
       condition had existed prior to the plaintiff’s injury, the court stated that “[i]t is a matter of
       common knowledge that iron will often rust and corrode when exposed to water and weather
       and that such rust and corrosion do not generally occur to any considerable extent or degree
       in a short period of time.” Id.
¶ 22       The Baker court held that the trial court erred in granting the defendant’s motion for a
       directed verdict because the jury could reasonably infer that the condition of the catch basin
       at the time of the plaintiff’s injury had occurred gradually over a considerable period of time
       and that the presence of such rust and corrosion and the worn condition of the cover might
       have been discovered and remedied by the defendant on reasonable inspection. Id. The court
       concluded that it was a question of fact for the jury to determine whether the “defective
       conditions were of such a character and had existed for such a length of time that the
       defendant might have discovered and remedied them, and to determine whether or not the
       defendant was negligent in this respect.” Id. at 594.
¶ 23       Here, there was evidence from which a jury could conclude that the deteriorated
       condition of the catch basin existed for a sufficient time that defendants should have been
       aware of it. Specifically, Mr. Lam testified that he lived at the property from 1989 until 2010,
       regularly inspected and maintained the backyard, and had walked and stood on the catch
       basin. He was aware of the catch basin since he and his wife purchased the property in 1989,
       but he never inspected or maintained the catch basin or lid aside from having the well
       cleaned in 1992. Although the previous property owner told Mr. Lam to look into the catch
       basin to make sure it did not get clogged with sewage, Mr. Lam said that he never followed
       that instruction or advice. Furthermore, the photographs show that some deterioration of the
       catch basin (the cracked concrete surface and rusted lid) was visible even when the lid was in
       place over the well of the catch basin. Also, the photographs of the cracked and corroded
       concrete upon which the rusty catch basin lid rested indicate that the catch basin’s defective
       condition existed for a considerable amount of time because concrete and metal deteriorate
       gradually. See id. at 593.
¶ 24       Construing the documents, testimony, and photographs strictly against defendants and in
       the light most favorable to plaintiff, we find that a genuine issue of fact exists concerning
       whether defendants had constructive notice of the dangerous condition. A reasonable trier of
       fact could infer from the cracked concrete surface, corroded concrete lip, and rusty lid that
       the defective condition of the catch basin existed for a sufficient duration to have given
       constructive notice to defendants, who should have discovered the defect by the exercise of
       reasonable care.
¶ 25       Defendants argue the circuit court properly awarded them summary judgment and rely on
       Zameer, 2013 IL App (1st) 120198, to support their assertion that plaintiff failed to present
       sufficient evidence to create a genuine issue of material fact about their constructive notice.

                                                   -5-
       In Zameer, the plaintiff alleged that she sustained injuries requiring surgery when she tripped
       and fell due to an approximately two-inch height disparity between two sidewalk slabs. Id.
       ¶ 4. The defendant municipality asserted it was immune from liability under the Local
       Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
       ILCS 10/3-102(a) (West 2010)) because it did not have notice of the raised sidewalk that
       caused her fall in adequate time to have taken measures to repair the sidewalk. Zameer, 2013
       IL App (1st) 120198, ¶¶ 5, 14-15. “Section 3-102(a) [of the Tort Immunity Act] requires
       proof that the defendant had timely notice of the specific defect that caused the plaintiff’s
       injuries, not merely the condition of the area.” Id. ¶ 16. The municipality moved for summary
       judgment, and the plaintiff argued, inter alia, that photographs of the defective sidewalk were
       sufficient evidence to show constructive notice. Id. ¶¶ 9, 22.
¶ 26       The Zameer court held that summary judgment for the municipality was proper because
       the plaintiff failed to present sufficient evidence to create a genuine issue under the Tort
       Immunity Act as to whether the municipality had constructive notice of the defect, i.e., that
       the condition existed for such a length of time or was so conspicuous that authorities
       exercising reasonable care and diligence might have known of it. Id. ¶¶ 19, 20, 22.
       Specifically, both the plaintiff and her companion at the time of the injury testified that they
       did not know how long the defect existed, and a civil engineer employed by the
       municipality’s department of transportation “testified that there is no way of telling how long
       the defect existed” and “it could have developed in as little as three weeks.” Id. ¶¶ 20-22.
¶ 27       Defendants’ reliance upon Zameer is misplaced because it is distinguishable from the
       present case. In Zameer, the photograph of the sidewalk slabs did nothing to indicate that the
       alleged defect—the two-inch height difference between the slabs—had existed for a
       sufficient length of time to constitute constructive notice, particularly in light of the civil
       engineer’s testimony that the condition could have developed in as little as three weeks.
       Here, in contrast, the photographs of the corroded and rusted condition of the catch basin
       indicate, as discussed above, that such deterioration of concrete and metal occurs gradually
       over time. Moreover, Mr. Lam testified that the catch basin was not inspected for 22 years.
¶ 28       Finally, we reject defendants’ assertion that plaintiff was required to present expert
       testimony about the duration of the defect. It is well settled that a trial court exercises its
       discretion to allow a person “to testify as an expert if his experience and qualifications afford
       him knowledge that is not common to laypersons, and where his testimony will aid the trier
       of fact in reaching its conclusions.” Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006).
       Moreover, “[p]laintiffs are not required to prove their case at the summary judgment stage.”
       Thompson, 241 Ill. 2d at 438. Here, a trier of fact viewing the photographs reasonably may
       discern the age and duration of the dangerous condition of the catch basin as having been in
       existence for a very long time, and such opinion is not within the sole province of an expert
       witness. See Pittman, 38 Ill. App. 3d at 1039 (rejecting the municipality’s assertion that only
       a cement mason, contractor, or engineer was qualified to express an opinion as to how long
       the dangerous sidewalk condition, as depicted in a photograph, had existed).

¶ 29                                    III. CONCLUSION
¶ 30       The circuit court erred in granting defendants summary judgment because plaintiff
       presented sufficient evidence to show a genuine issue of material fact about whether
       defendants had constructive notice of the dangerous condition of the catch basin. A jury

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       could infer from the testimony and photographic evidence that the deteriorated condition of
       the catch basin and surrounding concrete occurred over an extended period of time so that
       defendants would have discovered the dangerous condition in the exercise of reasonable care.
       Accordingly, we reverse the judgment of the circuit court and remand this cause.

¶ 31      Reversed and remanded.




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