                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                      Zameer v. City of Chicago, 2013 IL App (1st) 120198




Appellate Court            SHAHEEN ZAMEER, Plaintiff-Appellant, v. THE CITY OF CHICAGO,
Caption                    Defendant-Appellee.



District & No.             First District, Fifth Division
                           Docket No. 1-12-0198


Rule 23 Order filed        April 26, 2013
Rule 23 Order
withdrawn                  June 6, 2013
Opinion filed              July 19, 2013


Held                       Summary judgment was properly entered for defendant city in an action
(Note: This syllabus       for the injuries suffered when plaintiff tripped and fell on a sidewalk with
constitutes no part of     a two-inch height difference between two slabs of concrete, since there
the opinion of the court   was nothing in the record showing that the city had actual or constructive
but has been prepared      notice of the height difference prior to plaintiff’s injury.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-L-12704; the
Review                     Hon. Kathy M. Flanagan, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Jeffrey Friedman, of Law Office of Jeffrey Friedman, P.C., of Chicago,
Appeal                     for appellant.

                           Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                           Solomon, Myriam Zreczny Kasper, and Christopher S. Norborg,
                           Assistant Corporation Counsel, of counsel), for appellee.


Panel                      JUSTICE TAYLOR delivered the judgment of the court, with opinion.
                           Presiding Justice McBride and Justice Howse concurred in the judgment
                           and opinion.




                                              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).

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¶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 photos, 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 material fact as to whether the city had actual and/or constructive notice. We agree
       with defendant.
¶ 12        The purpose of summary judgment is not to try a question of fact, but to determine
       whether a genuine issue of material fact actually exists. Northern Illinois Emergency
       Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). Summary
       judgment is appropriate when “the pleadings, depositions, and admissions on file, together
       with the affidavits, if any, show that there is no issue as to any material fact and that the
       moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010).
       We review a ruling on summary judgment de novo. Outboard Marine Corp. v. Liberty
       Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992); Judge-Zeit v. General Parking Corp., 376
       Ill. App. 3d 573, 578 (2007). De novo review means that we examine the evidence
       unconstrained by the reasoning of the trial court. Merca v. Rhodes, 2011 IL App (1st) 102234
       (citing John E. Reid & Associates, Inc. v. Wicklander-Zulawski & Associates, 255 Ill. App.
       3d 533, 538-39 (1993), citing Outboard Marine, 154 Ill. 2d at 102).
¶ 13        A party is entitled to summary judgment where “the pleadings, depositions, and

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       admissions on file, together with the 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 2010); see Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).
       Summary judgment is a drastic measure and should only be granted if the movant’s right to
       judgment is clear and free from doubt. Id. Where a reasonable person could draw divergent
       inferences from undisputed facts, summary judgment should be denied. Pyne v. Witmer, 129
       Ill. 2d 351, 358 (1989); Outboard Marine, 154 Ill. 2d at 102. The documents are construed
       strictly against movant and in the light most favorable to the nonmovant. Espinoza v. Elgin,
       Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995); Hartz Construction Co. v. Village of
       Western Springs, 2012 IL App (1st) 103108.
¶ 14        Plaintiff argues that the city had actual notice of the defect based upon prior complaints
       about the sidewalk in 2005. Defendant contends that it has an affirmative defense of
       immunity under the Tort Immunity Act. The tort liability of a municipality is governed by
       the Tort Immunity Act. West v. Kirkham, 147 Ill. 2d 1, 6 (1992); see also Vesey v. Chicago
       Housing Authority, 145 Ill. 2d 404, 411-12 (1991). The purpose of the Act is to protect local
       governments and their employees from liability arising out of the operation of government,
       and the Act therefore grants immunities and defenses. Vesey, 145 Ill. 2d at 412. The Tort
       Immunity Act provides 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 2010); Burke v.
       Grillo, 227 Ill. App. 3d 9, 18 (1992). The burden of proving notice is on the party charging
       notice. Reed v. Eastin, 379 Ill. 586, 592 (1942); Buford v. Chicago Housing Authority, 131
       Ill. App. 3d 235, 246 (1985). The question of notice is generally one of fact, but it becomes
       a question of law if all the evidence when viewed in the light most favorable to the plaintiff
       so overwhelmingly favors the defendant public entity that no contrary verdict could ever
       stand. Buford, 131 Ill. App. 3d at 246; Cook v. Gould, 109 Ill. App. 3d 311, 316 (1982); see
       also Hollembaek v. Dominick’s Finer Foods, Inc., 137 Ill. App. 3d 773, 780 (1985); Pinto
       v. DeMunnick, 168 Ill. App. 3d 771, 774 (1988).
¶ 15        Where a condition has existed for such a length of time, or was so conspicuous, that
       authorities exercising due diligence might have known of it, the plaintiff has established
       notice. Buford, 131 Ill. App. 3d at 246. Also, notice of facts that would put a reasonably
       prudent person on inquiry renders the authorities chargeable with knowledge of any fact that
       might have been discovered by a reasonable investigation. Palermo v. City of Chicago
       Heights, 2 Ill. App. 3d 1004 (1971); Pinto, 168 Ill. App. 3d at 774.
¶ 16        Section 3-102(a) 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. Brzinski v. Northeast
       Illinois Regional Commuter R.R. Corp., 384 Ill. App. 3d 202, 206 (2008); Pinto, 168 Ill.
       App. 3d at 774. Thus, in the instant case, to survive summary judgment, plaintiff needed to
       adduce evidence sufficient to support a jury finding that the city had either actual or
       constructive notice of the raised sidewalk that caused her fall in adequate time to have taken
       measures to repair the sidewalk.
¶ 17        Plaintiff contends there is sufficient evidence to create a genuine issue as to whether the

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       city had actual notice of the defect that caused her injuries. She first argued there were
       multiple prior complaints about the sidewalk along the east side of the 6000 block of North
       Sacramento Avenue made in 2005. However, there is no indication in the record that either
       complaint was about the specific defect that caused plaintiff’s fall at 6017 North Sacramento
       Avenue. The first complaint specified a sidewalk crack in front of the property at 6021 North
       Sacramento Avenue. The other complaint was made by a resident of 6019 North Sacramento
       Avenue, and although it indicated a sidewalk crack, it did not specify the exact location of
       the crack.
¶ 18        Plaintiff argues that complaints about the 6000 block of North Sacramento Avenue are
       close enough to the block with the defect to constitute actual notice. Plaintiff further argues
       Illinois courts adopted a liberal approach to statutory notice under section 8-102, which
       required notice of injury within six months of accrual of claim under this Act. The main
       inquiry is whether a notice gave city authorities “sufficient information to *** enable them,
       by the exercise of reasonable intelligence and diligence, to locate the place of the injury and
       ascertain conditions alleged to have existed which caused it.” McComb v. City of Chicago,
       263 Ill. 510, 512 (1914). Therefore, plaintiff argues there is sufficient circumstantial evidence
       of actual notice. We disagree. First, the liberal approach was repealed by the legislature in
       1986. Pub. Act 84-1431 (eff. Nov. 25, 1986) (repealing Ill. Rev. Stat. 1985, ch. 85, ¶ 8-102).
       Second, the records contain no evidence that anyone informed the city of the raised sidewalk
       in front of 6017 North Sacramento Avenue before plaintiff’s accident. No one reported the
       defect to 311 services department or otherwise notified the city. Thus, we conclude that the
       trial court did not err in finding that the city did not have actual notice of the defect.
¶ 19        Even if the city did not have actual notice of the defect, plaintiff argues that it did have
       constructive notice based upon photographs of the defect, the fact that the city had received
       multiple prior complaints about defects in the area, and the fact that there were sidewalk
       repair projects in the area. Defendant disagrees and so do we. Constructive notice under
       section 3-102(a) of the Act “is established where a condition has existed for such a length
       of time, or was so conspicuous, that authorities exercising reasonable care and diligence
       might have known of it.” Finley v. Mercer County, 172 Ill. App. 3d 30, 33 (1988); see also
       Coultas v. City of Winchester, 208 Ill. App. 3d 238, 240 (1991). “The rule is that constructive
       notice is present where a defective condition exists for such a length of time that public
       authorities, by the exercise of reasonable care and diligence, might have known of the
       condition.” Livings v. City of Chicago, 26 Ill. App. 3d 850, 854 (1975); see Palermo, 2 Ill.
       App. 3d at 1006.
¶ 20        Plaintiff argues it is generally a question of fact for the jury to determine whether a
       defective condition has existed for a sufficient period of time prior to the injury and was of
       such a character for the city to be deemed to have constructive notice. Baker v. City of
       Granite City, 311 Ill. App. 586 (1941). In so arguing, plaintiff relies on Hess v. City of
       Chicago, 101 Ill. App. 3d 426 (1981). In Hess, on the issue of constructive notice, the
       plaintiff introduced testimony of her companion at the time of the accident. Hess, 101 Ill.
       App. 3d at 431. The companion testified she was familiar with the commercial area of the
       fall and that the condition of the sidewalk was in existence for at least a year before plaintiff
       had the accident. Id. Although plaintiff argues that the instant case is analogous to Hess, we

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       disagree. First, the area in the instant case was residential, not commercial, and thus less
       traveled, and furthermore, here there is no testimony as to the length of time the defect
       existed and there was testimony it could have developed in as little as three weeks. In fact,
       both the plaintiff and her companion at the time of the accident testified that they did not
       know how long the defect existed, and there was testimony by a city employee it could have
       developed in as little as three weeks.
¶ 21       Plaintiff further argues there is not a specific time limit to constructive notice and relies
       on several cases that found constructive notice under a time frame for the existence of the
       defect in the area of one to two years and two to three years. In Baker, the court found
       sufficient evidence to support a finding of constructive notice where there were several
       conspicuous cracks in the sidewalk in the area where plaintiff fell and the crack causing the
       injury was located at a busy intersection of the city just across the street from city hall. Baker
       v. City of Granite City, 75 Ill. App. 3d 157, 161-62 (1979). Although the Baker defendant
       claimed that it did not have actual notice of the particular crack in question, the city street
       superintendent admitted that he was generally aware of the several cracks in the Edison
       Avenue area near the bank. Id. The court found that this admission, in conjunction with the
       evidence tending to show that the defect existed for a long period of time in a conspicuous
       place, was more than ample to charge defendant with constructive notice of the crack in the
       sidewalk. Id. However, unlike both cases in which there was testimony about the length of
       time the defect existed, in the case at bar there is no evidence of the time frame of the
       existence of the defect.
¶ 22       According to plaintiff, the photographs show that the defect existed for at least two years.
       Defendant introduced evidence by way of testimony of a civil engineer with the city’s
       department of transportation, who testified that there is no way to determine when the defect
       developed. Plaintiff relies on Pittman v. City of Chicago, 38 Ill. App. 3d 1036 (1976), for the
       proposition that a photo can be enough evidence for constructive notice. In Pittman, the
       plaintiff testified the defect existed for the entire time the plaintiff traveled the block, about
       six years. The court found that this testimony, along with the photograph of the defect,
       supported a finding of constructive notice. Pittman, 38 Ill. App. 3d at 1039-40. The court
       found a reading of the testimony strongly suggests that the dangerous condition, as depicted
       in the photograph, existed for the entire time plaintiff traveled this block while employed at
       the candy factory; to wit, six years. However, in the instant case, as has been referred to
       above, plaintiff and her companion have no idea how long the defect existed before the fall,
       and defendant’s employee testified that there is no way of telling how long the defect existed.
       Thus, unlike the plaintiff in Pittman, the plaintiff in the instant case has not presented
       evidence that would raise an issue of material fact as to the length of time the defect existed.
¶ 23       Plaintiff further argues that multiple prior complaints should have alerted the city to
       repair a broader section of sidewalk. However, the surrounding area is irrelevant. A
       negligence plaintiff must prove that the defendant had timely notice of the specific defect that
       caused her injuries. Brzinski, 384 Ill. App. 3d at 206 (the presence of sinkholes in the area
       is insufficient to charge defendant with constructive notice of the sinkhole which caused
       plaintiff’s injury). In Gleason, the court held the presence of a general condition is irrelevant
       to the cause of her fall because the surrounding conditions did not cause her fall. Gleason v.

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       City of Chicago, 190 Ill. App. 3d 1068, 1070 (1989). We, therefore, find that the circuit court
       properly granted the city’s motion for summary judgment.
¶ 24       We conclude that plaintiff failed to meet her burden to provide facts showing that the city
       had constructive notice of the condition. As no genuine issue of material fact existed
       regarding constructive notice, summary judgment was properly granted for the city. We find
       substantial support for this conclusion in Pinto. Pinto, 168 Ill. App. 3d at 775. In that case,
       the plaintiff fell in a hole on a parkway belonging to the village of Alsip. Pinto, 168 Ill. App.
       3d at 772-73. The parkway was in front of an apartment building. Id. One of the owners of
       the building testified that she never saw the hole prior to the accident even though she
       mowed and fertilized the lawn five days before the injury. Id. The other owner testified that
       he filled the hole both times it appeared but did not notice any hole when he mowed the lawn
       a month or two before the accident. Id. After the accident, the hole was found to be about
       five or six feet deep. Id. The court found that plaintiff failed to present sufficient evidence
       that the hole was plainly visible or that the hole was apparent for so long a time prior to the
       injury to permit an inference that the village was constructively notified of the existence of
       the hole. Id. In the instant case, plaintiff argues that a jury could reasonably infer that the
       condition which existed at the time of the accident could have developed over a period of
       long duration. This argument was refuted by defendant, in testimony by a city employee,
       stating that there was no way of telling when the defect came into existence and that it could
       be as long as a year or as short as three weeks. Plus, the testimony by plaintiff and her
       companion at the time of the accident that they had no idea when the defect came into
       existence supports the trial court in granting summary judgement against plaintiff.
¶ 25       Plaintiff argues that there was evidence of sidewalk repair projects in 2004 and 2008
       along the sidewalk starting at 6021 North Sacramento Avenue. She further argues since there
       was evidence that this section of the sidewalk remained free of defects for two years, it could
       be inferred that the raised sidewalk would also remain in substantially the same condition
       over the same period and thus the jury could infer the defect existed for over two years.
       Defendant argues that this is sheer speculation and that the areas compared have distinct
       characteristics. We agree. It was testified to that many factors enter into how a sidewalk ages,
       such as weather, traffic pattern, presence or absence of trees in the area, and the materials
       used. There is no evidence the same material was used by different contractors. Defendant
       refers to Chicago department of transportation, streetscape from 2003 indicating that most
       sidewalks are “monolithis” and also to section 10-20-510 of Chicago’s Municipal Code,
       which states “No part of the top or wearing surface of any sidewalk in any public way shall
       be composed of any nonstandard surface ***.” Chicago Municipal Code § 10-20-510
       (amended Jan. 13, 2010). However, this is not proof of the exact materials used. Further,
       defendant’s records show that the repairs to the nearby sections of the sidewalk were
       performed by outside contractors, not the city. Moreover, the city points out that there is no
       evidence that the complained-of height differential existed at the time the other repairs were
       performed.
¶ 26       Defendant argued that the defect in the sidewalk is de minimis and therefore not
       actionable. However, since it was not established that the city received either actual or
       constructive notice of the defect, we need not address this argument.

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¶ 27                                CONCLUSION
¶ 28   For the foregoing reasons, we affirm the trial court’s judgment.

¶ 29   Affirmed.




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