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"stt_transcript": "Case number 25-2356, Luciana Clark versus City of Chicago. Good afternoon and welcome. Each side will be asked to state your appearance for the record before you begin presenting your argument. You'll also be given 20 minutes each in order to present your argument, with the petitioner having the opportunity to reserve time for rebuttal. Petitioner, please state your appearance for the record. Good afternoon. My name is Terry M. Lachek. It's L-A-C-H-C-I-K on behalf of the petitioner, Luciana Clark. Okay, and would you like to reserve time for rebuttal? Yes, five minutes will be fine. Okay, very well. You may proceed, counsel. Thank you. May it please the court, counsel. This matter comes before the court on the appeal of the plaintiff, Luciana Clark, following the entry of summary judgment in the court below by the Honorable Judge Barrett. The case arises out of a trip and fall on a public sidewalk at the O'Hare Airport complex outside the Hilton Hotel that occurred on December 1st of 2020. Ms. Clark was walking along a sidewalk outside the Hilton when she stepped into a defective area of missing concrete between two concrete slabs, causing her to fall and become injured. The sidewalk in question at the time and before was maintained by the City of Chicago on a date of the occurrence and for some time prior to the occurrence, sidewalk in that particular area had fallen into disrepair. In particular, one section of the sidewalk between two adjoining slabs had deteriorated to the point where there was a depression or a hole in that area and that hole measured approximately four feet in length, approximately three to five inches in width, and about a half an inch in depth. The condition had existed for a period of time before and in fact in 2019 was part of an area of the sidewalk or that particular area outside the Hilton that had been the subject of a request for to be designated for repair, a request for funds in order to do the construction or the repair work that needed to be done. In fact, at times prior to and since the occurrence, there has been ongoing construction and repair of various portions of that particular area. We've all walked the streets of Chicago and it is not uncommon to see small areas between the sidewalk squares to be in disrepair or start to chip. Why isn't this de minimis? It's not de minimis, Your Honor, because the general rule in cases of this type is every case is to be taken on its own merits or its own set of facts. There's no bright line rule, as I'm sure the panel is aware, as to what constitutes de minimis. It's not necessarily the depth of the depression that causes the effect of condition. There are other aggravating or surrounding circumstances that can be taken into account. For example, a one-half inch depression might be considered quote de minimis unquote, but this is an area in this particular case that was in fact three to five inches in width, so it's not simply a height discrepancy between the two adjoining slabs of one-half inch. There's actually missing concrete. It's also four feet in length as it's been described in the record. Some people may call that width, but in any event there are photographs that are part of the record which depict the area that we're talking about. So when you take into consideration all the circumstances surrounding this particular defective condition, I think at the end of the day, the other part of the analysis is would a reasonable person find that an unreasonable risk of harm was presented by this particular condition, and that is dependent on the particular facts of the particular case, and I think based upon all the circumstances here to answer your question, we have a situation where the surrounding circumstances, not just the depth of the depression, the width of the depression, the length of the depression, but all of the surrounding circumstances taken into consideration raise questions as a fact as to whether an unreasonable risk of harm was presented. Let's move to your next hurdle though. What evidence establishes that the city had noticed of the condition? In the depositions, I'm sorry, in the depositions of Mr. Harney and Mr. Tagler, well, I'll talk about Mr. Harney. Mr. Tagler was out there after the occurrence, but in the deposition of Mr. Harney, he indicated that in the summer of 2019 he had indicated that that area was part of a general area that was in need of repair, and he submitted a request for funds and authority to go ahead and have repairs in that area done. So there is... Can you explain what you mean by that area? Was it this particular hole or was it something around that hole? What was exactly designated for repair? I believe the record shows it's the general area, including the area where Ms. Clark fell. I don't know that there is any particular reference to that actual hole or depression in the concrete, but it was part of the area in a requisition submitted by Mr. Mr. Harney for consideration for repair. Is it clear from the designation how big an area we're talking about? Well, as far as... Yes, Mr. Tagler went out after the fact, I believe, later in 2021 and measured it, and that's where the dimensions of half an inch or so in depth... No, I mean the area that was designated for repair. Is it a block? How big an area is designated for repair? Your Honor, that's a question I don't know specifically. There is documentation in the record with respect to that, and photographs do show areas where there are steel plates on in other areas, not this particular area. Horses that are put up to designate areas that people should avoid. So it's kind of a large area, and it looks like it's an ongoing project. And these are steel plates. You're referring to those big things that cover holes that we can just walk right over? Correct. Those were in the general area, and in fact, they're referenced in Ms. Clark's deposition as something that drew her attention away from the particular defect that caused her to fall. The steel plates that she saw, one of which was above sidewalk level, and she wanted to avoid that at the time or immediately prior to her stepping into the depression or the hole that caused her to fall. Which I guess gets you to your next hurdle. If it is not de minimis, is it open and obvious, and then do you need to show a distraction? Can it be not de minimis and not open and obvious, or is it clearly open and obvious if it's not de minimis? I'm not sure that the law is clear. There are mountains of cases on these questions, but to answer your question, Your Honor, I think that a condition can be de minimis and open and obvious. I think there are cases which hold for that proposition. There's no question about that. I think that in this particular case, the distraction is an exception to the open and obvious. And in this case, there is evidence that Ms. Clark's attention was drawn away from the condition by a steel plate or steel plates, which distracted her from being able to observe and appreciate that particular hazard at the time that she was walking there. So what aggravating circumstances apart from what we see now, apart from the size of the defect, and apart from the city having noticed that would support liability? That's sort of your next hurdle, your next hurdle. I apologize for that. That's okay. Aggravating circumstances are the length of time that the condition existed, and it existed at least as far back as 2019, given in the documentation and the record that the city had looked or requested authorization or funding for repair of that area. The fact that when Mr. Tagler went out and measured, or there is evidence in the record, it's that I believe it's Mr. Hagler did admit that a condition that was or a gap that was two inches in width would be considered hazardous or dangerous, or he would consider it. And we have evidence that the condition was at least three inches and as much as five inches in width, and that condition had existed for a period of time prior to this occurrence, and the city was aware of that condition. That's an aggravating circumstance, and I think that that has to be taken into account. And again, it raises a question of fact, which is really it. Ultimately, what we're talking about is whether it was appropriate for the trial court to enter summary judgment, and I think the court erred in entering summary judgment. There are questions of fact that should have been decided by the trier of fact, in this case should have gone to a jury, should not have been decided as a matter of law, as was decided in this case. I would also point to the fact that when we talk about, and I'll circle back to the distraction in the steel plate or plates being a distraction, one of the things that should be considered is that the city created that distraction. The was responsible for the placement of those plates in the area, so they created the distraction that drew Ms. Clark's attention away from the defect that actually caused her to fall. So taking all of this into account, into consideration, circumstances as a whole, there are certainly questions of fact which were inappropriate for the entry of summary judgment in this case. That really summarizes my argument. Answering your questions. If you have other questions, I'd be more than happy to answer them, but given that, I think I've covered everything I hope to cover for the court. OK, thank you very much. Appellees Council, you may proceed. Good afternoon, Your Honors. Keith Yamaguchi on behalf of the City of Chicago. May it please the court. One thing I do want to start off with before presenting argument is to clarify a couple things that Council had mentioned. Number one, Council had mentioned that the area of the sidewalk which plaintiff allegedly tripped on, the or was designated for repair based on the documentation in the record, but that is incorrect. If we look at Mr. Harney's testimony, he specifically was asked, and this is on in the record C-671, he was specifically asked if the requisition forms that were made exhibits at his deposition entailed repair of the sidewalk scene that's at issue here as opposed to the broken sidewalk that was adjacent to this sidewalk in which there were metal grates which covered a bunch of equipment which had what Mr. Harney did call bad concrete. Obviously, with that repair work, and this is in evidence in some of the photographs we have in the record, the one specifically taken by plaintiff's husband, show the steel plates and where they were positioned primarily to cover those metal graded areas. I also wanted to clarify that Mr. Pat Tagler, he's the safety director at the time of the Department of Aviation, he did not testify as to anything involving a two-inch defect being a hazard. Mr. Yamaguchi, the trial court decided this as a matter of law, and my question for you is simply, what evidence in the record would support finding that the defect was de minimis as a matter of law? I think very simply, the de minimis rule applies to this case because the broken sidewalk seam at issue is a half inch deep, is less than a half inch deep, and despite the front to back width, I say front to back just so there's a, we're clear as to when we use width and length, but the front to back width is, front to back being the direction the pedestrian is walking. The variation is three to five inches in this case, but the vertical displacement throughout is less than a half inch, and it's our, the city's position that a reasonably prudent person should not anticipate some danger to persons walking upon the broken sidewalk seam in this case. In addition, there is insufficient evidence of aggravating factors or exceptional circumstances in this case to make the broken sidewalk seam actionable. It was daylight. The sidewalk seam is shown in the photographs, clearly visible. There was, according to plaintiff's testimony, there was one sole individual who was walking on the sidewalk at the same time that she was, so it was not congested by any means, and plaintiff testified that there were metal plates that she observed. They did not obscure her visibility of the broken seam per her testimony, and the evidence from the photographs in the record taken by her husband reveal that these steel plates were off to the side by the benches where the metal grates were located, and what that really demonstrates from an evidence standpoint is plaintiff observed both this pedestrian and the metal plates as she walked back, and she testified to that, but before she encountered the broken sidewalk seam, the pedestrian and these steel plates, these are not obstacles that you encounter suddenly and have to take evasive action to avoid. To avoid an oncoming pedestrian and stationary metal plates as she walked back, plaintiff simply had to walk down the sidewalk she had walked previously that same day through a path that she wouldn't be stepping on metal plates or walking into a pedestrian. So the city's position is there are no aggravating factors as those identified in the cases cited by the appellant. Just before you move on, I want to go back to the portion of the sidewalk designated for repair. You're saying that designation for repair had nothing to do with this seam in the sidewalk. Is that what you're saying? That's correct. That is the testimony of Mr. Harney when he was presented with the requisition for the cement repair work that was supposed to be done. The requisition, I think, dated in 2019, and there was some clarification that was by one of the former co-defendants that was asked of Mr. Harney that what was the scope of that requisition, and as I noted before in the record, he clearly stated that, I mean, the question was, so it's your testimony that only applied to the concrete around those grates. He answered yes, and next question, it didn't apply to the sidewalk that we've been talking about with the expansion joint, and he said no. Okay, and that's in record at C-671? That's correct. And so are you questioning, are you saying the city didn't even have notice as to this crack? Because are they not relying on this designation as the notice that the city had? I would say the city did not have actual notice of this broken sidewalk seam. I don't know if I would, I'm not going to concede that they had constructive notice, but to be fair, for the city to be looking at repairing what they term bad concrete around these grates in an area on the benches, which is adjacent to this concrete, the way some of the work is done is when a project is done, and the funding is designated for that project, they will try to get the contractor to do things, for example, a sidewalk seam. Right, and since they've gone out and looked at this area, they probably, somebody at least saw this crack probably, could have, may have. I think that's a reasonable. Okay. So, Councilor, are you denying that there have been other complaints about this particular crack? Yes, I'm not aware of any complaints about the broken sidewalk seams. How do you account for the city's prior reports, knowledge, and the uncompleted 2019 repair requisition? Because the requisition, again, was not for the broken sidewalk seam that we're talking about at issue. It was for the sidewalk. If you look at the photographs, you have the sidewalk, and then adjacent to it, running parallel. On the other side of the benches? And the metal grates. And those run, I believe, down two of the sidewalks that kind of run in this courtyard in the back of the Hilton Hotel. But that is where the requisition, and that's the testimony of Mr. Harney. That's what the specifically applied to. Just to be clear, you're talking about what's on the other side of the benches from where this seam issue is? Correct. Okay. I also wanted to just state that as far as any testimony of Mr. Harney, and to the extent that appellants are claiming that his statements provide some type of aggravating factor. First, I'll point out that that statement was made without any supporting legal authority. But from a factual standpoint, I'll just point out and highlight, Mr. Harney, he's the city's Deputy Commissioner of O'Hare Airport Facilities. It's a huge job. And his personal opinion about what types of broken sidewalk seams potentially pose safety hazards are not aggravating factors. Mr. Harney testified that he was not the end-all, be-all, that those was a specific question asked of him. End-all, be-all decision-maker on sidewalk repair projects. Those projects involve multiple groups at the CDA. And of course, not surprisingly, they involve budget issues, scheduling issues, and they try to tie them to related projects. And his personal opinion about the potential hazard of a broken sidewalk seam creates, doesn't, the hazard that it creates doesn't alter the fact that the city has to decide how it's going to sidewalks over the thousands of square feet of concrete at O'Hare. But he is that person that is on site that would be able to, I guess, make the recommendation. Isn't that correct? No, the way it typically works from his testimony, he is at the airport, mainly because all the trades people and the others that report to him are stationed at the airport. But he does rely on employees, other people who are walking through areas to identify potential areas that might need to have repair. I think one of the important aspects from his testimony, as he stated, is to get from the Hilton Hotel to the terminal, while you physically can do it going through this courtyard. The vast majority of guests at the Hilton Hotel or traveling passengers who are staying there, they go to and from the Hilton Hotel through the underground terminal, pedestrian terminals, mainly because there's four separate terminals. It makes the walk safe. She's not a guest. We're talking about a, I guess, an employee, if you will. Correct. Employee, very familiar with the courtyard. Required to go there. She was very familiar with it. She was very familiar with the condition of the concrete, condition of the courtyard. Well, that takes me to the open and obvious. Was it open and obvious simply because she takes that route somewhat regularly? Or are you stating that it would be open and obvious to anyone walking through there? I am stating that it would be open and obvious to anyone walking through there. I will just say the City will submit that with regard to the open and obvious argument, it's our position that Appellant has acknowledged that this particular broken sidewalk scene is open and obvious. Their response brief doesn't really address whether it is or not. It basically addresses whether there was a distraction exception to the open and obvious issue. Yeah, well, why isn't the existence of and significance of the dirt, the rocks, the debris, and other conditions not a question of fact? Why wouldn't that be a question for a jury rather than the judge? Well, I think the issue with regard to when we're talking about the actual contents that might be seen in this particular broken scene, there is no evidence, Your Honor. I would submit that the only evidence showing what might be lying within this broken scene are the photographs taken by the City's Pat Tagler. Those were taken 10 months later after a full winter season. I don't believe those are probative as to the issue of what is shown resting at the bottom. Plaintiff was asked specifically those questions to describe what was in the sidewalk scene that she tripped on. She was unable to really provide any testimony other than she stated that they were close to some bushes and I think that was... Well, wouldn't a jury have to decide whether or not those plates were a distraction? You talked about the positioning of the plates and that she wouldn't have to try to avoid the plates or anything, but isn't that something that a jury could decide? No, I don't believe so, Your Honor. I think that in this case, as far as the case law in evaluating distractions under the open... distraction exception under the open and obvious doctrine, I think there's case law which supports that, for example, pedestrians are not a distraction to something that's an open obvious doctrine. I think in this case, the case that comes to mind to me is the Postram case and that's a case where it specifically points out, the court points out that the plaintiff cannot call an exception based on the condition of the surrounding sidewalk to say that it distracted her from the condition which caused her injury. That was... I'm kind of paraphrasing that, but we believe that that case stands for the proposition that there are no issues of the distraction exception that need to go to a jury in this case, that it's an open and obvious... But this isn't just a sidewalk. She's not just claiming that the other part of the sidewalk was a distraction. She's saying that these plates that someone working on behalf of your client intentionally placed there to, I guess, address some other potential hazard that that is what was the distraction, not just the other sidewalk. Well, I don't think her testimony says that she was distracted by anything. Her testimony is that she was trying to avoid the steel plates and as I stated before... That's not the... Okay. Okay. And the trial... You're talking a lot about this, but the trial court never decided this on the basis of open and obvious. That's correct, your honor. The trial court ruled on the de minimis doctrine that this was a de minimis condition and said that it did not need to go. So if we disagree with you or disagree with the trial court regarding the de minimis issue, where does that take us? Well, I think if you're going to disagree with the trial court's decision on de minimis, I believe the issue of open and obvious is before this court and would have to be evaluated. And you believe that we should make that decision in the first instance or should we send it back for the trial court to make that decision? No, I believe that or the city believes that this panel should make that decision. It's a decision that can be made as a matter of law and should be made by the court of appeals. And so what evidence support would support us affirming this on the basis of open and obvious? Give us... And I know you've been talking about it the whole time, but I'm not there yet. The open and obvious is the evidence we have is the photograph. It's a light-colored slab of concrete and in the sidewalk seam is a dark-colored, you know, broken seam because the pavement has been removed. So it appears you have some dirt and there's a stark contrast in color, which as a pedestrian walking sidewalks everywhere, it's not uncommon. So I'm a guest at the and I'm pulling my luggage, walking through there for the first time. Your position is that I would notice this crack in the sidewalk and be able to, well, notice it sufficiently in advance so that I could avoid it. Absolutely. And I'm sorry, go ahead and finish. I was just going to say, just from a reasonable person standpoint, I didn't want to say me, but as a reasonable person, absolutely. And I'll ask you the same question I asked opposing counsel. In your mind, something could be de minimis and still be open and obvious. Yes, absolutely. Okay. So in the city's position, the trial court summary judgment ruling in favor of the city of Chicago should be affirmed that the city has no duty to repair de minimis defects. And the economic burden would be too great and impractical to impose a duty on the city to repair shallow sidewalk defects, less than a half inch depth, even with a three to five inch front to back width, particularly where there is insufficient evidence of any aggravating circumstances. And plaintiff in the city's view, exercising ordinary care could have easily avoided the broken sidewalk seam condition present in this case. The eroded sidewalk seam is one which is routinely encountered in an ordinary sidewalk. And lastly, the city had no duty to repair this sidewalk condition because as shown in the photographs taken by the city specifically at the record C-484 to C-493, the condition causing plaintiff's alleged trip and fall was open and obvious as a matter of law and was not subject to the distraction exception. And we respectfully request that the trial court's ruling be affirmed. Okay. Any additional questions from the panel? No. Thank you very much. Okay. Attorney Lacek. Lacek. Lacek. I'm sorry. I'm making it more complicated than it is. It's not apparent from the spelling. Okay. So would you like to utilize your time for rebuttal? Yes, and probably not all of it. Thank you, Your Honor. I think just two points. One, I'll address something that my opponent just said with respect to the reference to the financial burden on the city. Again, that's a bright line rule. That's the general proposition. But in this particular case, there's evidence that the city is doing repair work all around this particular defect in the a huge financial burden for the city to pay for or to pay for the repair of this particular defective condition while there's work going on there. So I think the argument that the financial burden would be too onerous or it'd be too burdensome for the city, that's fine for the general proposition. And it is the general rule. But in this particular case, and these cases are decided on their own facts, it would not have been overly burdensome for the city to have repaired this prior to December 1st of 2020. The other point I would like to make is that we were talking about Mr. Hagler and his opinion as to whether a two-inch gap poses a danger. That's what we're talking about here. We're talking about what would a reasonable person think about this particular condition, which makes it absolutely inappropriate to decide this question as a matter of law. This is a question of fact for a jury, for the trier of fact, and it was inappropriate for the court to rule as a matter of law that this condition was de minimis. And I think that that's borne out by the totality of the circumstances. I thank the court for its time. Okay. Thank you very much. We will take your arguments and, of course, the briefs under advisement and enter a ruling sometime in the near future. Thank you very much. Thank you all. Thank you very much."
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