Schrader v. City of Rockford, 2022 IL App (2d) 200575-U , 2022 IL App (2d) 200575-U ( 2022 )

2022 IL App (2d) 200575-UNo. 2-20-0575
Order filed March 10, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
ELLEN L. SCHRADER, ) Appeal from the Circuit Court
) of Winnebago County.
Plaintiff-Appellant, )
)
v. ) No. 15-L-359
)
CITY OF ROCKFORD, ) Honorable
) Lisa R. Fabiano,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: Summary judgment was proper for municipal defendant on plaintiff’s complaint
alleging that she fell because of the dangerous condition of defendant’s sidewalk;
plaintiff failed to produce evidence that defendant created the condition or had
actual or constructive notice of it.
¶2 Plaintiff, Ellen L. Schrader, sued defendant, the City of Rockford, after she lost her balance
and fell on displaced sidewalk slabs. Defendant moved for summary judgment, arguing that no
evidence was presented that it had notice of the displaced sidewalk slabs. The trial court granted
defendant’s motion for summary judgment, and this timely appeal followed. At issue is whether
defendant is liable because it either (1) created the dangerous condition, i.e., the displaced slabs,
2022 IL App (2d) 200575-Uor (2) had actual or constructive notice of the displaced slabs in reasonably adequate time to have
taken measures to repair them before plaintiff’s fall. We hold that no genuine issue of material
fact was presented as to either basis of liability and that summary judgment for defendant was
proper.
¶3 I. BACKGROUND
¶4 Around 11 a.m. on May 30, 2012, plaintiff was walking eastbound on the north sidewalk
along West Jefferson Street in downtown Rockford. As she approached the corner of North Main
Street, she stepped on displaced slabs of the sidewalk, lost her balance, fell, and was injured.
Plaintiff sued defendant, claiming that defendant was negligent in failing to fix the sidewalk and
provide safe passage for pedestrians. Plaintiff alleged that the roots of a tree abutting the sidewalk
pushed the sidewalk up and caused a dangerous condition, of which defendant had actual or
constructive notice.
¶5 Defendant answered the complaint, asserting that, under section 3-102(a) of the Local
Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102(a)
(West 2014)), it was not liable to plaintiff for her injuries because it did not have notice of the
displaced sidewalk slabs before plaintiff’s fall. Later, defendant moved for summary judgment,
claiming, again, that it lacked notice. Attached to defendant’s motion were (1) plaintiff’s
deposition and photographic exhibits; (2) two depositions of Mark Stockman (who was street
superintendent of defendant’s public works department and later was that department’s director);
and (3) an affidavit from Gary Kovanda (who previously worked with plaintiff).
¶6 Plaintiff stated during her deposition that, as she walked eastbound on the sidewalk along
West Jefferson Street, she traversed a sidewalk slab that was abutting a bricked area surrounding
a tree. As she stepped off that slab onto the adjoining slab, she lost her balance and fell because
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2022 IL App (2d) 200575-Uthe adjoining slab was lower. She circled on a photo the particular portion that caused her fall.
Plaintiff claimed that the displacement was not visible as she approached the slab. Plaintiff
admitted that she was not aware that anyone had informed defendant about the condition of the
sidewalk before she fell.
¶7 The photos attached to plaintiff’s deposition depict a section of the sidewalk along West
Jefferson Street. One slab of the sidewalk abuts a bricked area surrounding a tree. The portion
circled by plaintiff is at the junction of that slab with the slab immediately to the east. Plaintiff
specifically cited the end of the joint nearest the brick, where the west slab is higher than the east
slab, as the cause of her fall. At the opposite corner of the west slab, along the brick, the concrete
is cracked.
¶8 Stockman indicated that he reviewed the entries in defendant’s “Hansen” software system,
which is used to report various issues including needed sidewalk repairs, and found no complaints
about the sidewalk before plaintiff’s fall. Stockman stated that the first-time defendant was made
aware of a problem with the sidewalk was after plaintiff fell. When asked whether the tree roots
could have caused the displaced sidewalk slabs, Stockman responded, “Possibly.”
¶9 Kovanda, plaintiff’s co-worker, stated in his affidavit that he talked to plaintiff after she
fell. “Sometime” later, Kovanda attended an event in Rockford. In coming and going, he walked
the sidewalk on West Jefferson near North Main Street. On his first pass, he “did not notice that
the sidewalk *** was in a very deteriorated condition until [he] stepped onto it.” On his second
pass, he observed that the sidewalk “was in a very dilapidated condition.” “It looked like someone
dropped a heavy weight onto [the sidewalk] breaking it into many pieces.”
¶ 10 In response to defendant’s summary judgment motion, plaintiff argued that, because
defendant created the dangerous condition by planting the tree next to the sidewalk, it was
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2022 IL App (2d) 200575-Uirrelevant whether defendant received notice. Alternatively, plaintiff contended that, because the
displaced sidewalk slabs were in a busy area, defendant must have had notice of the condition.
Citing Monson v. City of Danville, 2018 IL 122486, plaintiff argued that defendant was required
to have a policy in place to inspect the sidewalk. Plaintiff asserted that defendant’s Hansen system
was substandard at best.
¶ 11 Attached to plaintiff’s response were the depositions of Mitchell Leatherby (defendant’s
current street superintendent) and Glenn Trommels (head of defendant’s information technology
department) and photographs showing eastward and westward views of the sidewalk. Leatherby
stated during his deposition that he was never consulted about repairing the portion of the sidewalk
at issue. He indicated that he first learned about the sidewalk after plaintiff fell, when defendant’s
attorney spoke to him about it. Moreover, Leatherby first learned from the photos attached to
plaintiff’s response that a new tree had been planted by the sidewalk. Trommels stated during his
deposition that defendant uses the Hansen system to log, among other things, service requests,
complaints, and applications for permits. Trommels indicated that if a complaint about a sidewalk
is made in any way—such as by phone, email, fax, or through the city’s website—that complaint
is logged into the Hansen system. The complaint then remains in the system indefinitely. That is,
the Hansen system does not automatically delete complaints, though it is possible to manually
delete them (Trommels had no knowledge of any complaint being manually deleted). As for the
photos, the displacement that plaintiff identified as causing her fall is not visible in the eastward
view. However, the displacement is visible in the westward view.
¶ 12 The trial court granted defendant’s motion for summary judgment. The court found (1) no
evidence that defendant created the sidewalk’s defective condition; (2) no evidence that defendant
had notice of the sidewalk’s condition; (3) Stockman’s speculation that the tree’s roots might have
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2022 IL App (2d) 200575-Ucreated the problem did not create a genuine issue of material fact; and (4) Monson was
inapplicable.
¶ 13 II. ANALYSIS
¶ 14 On appeal, plaintiff challenges the grant of summary judgment. “Summary judgment is a
drastic measure and should only be granted if the movant’s right to judgment is clear and free from
doubt.” Zameer v. City of Chicago, 2013 IL App (1st) 120198, ¶ 13. “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.” Id. ¶ 12. “A party is entitled to summary judgment where ‘the pleadings,
depositions, and 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.’ ” Id. ¶ 13 (quoting 735 ILCS 5/2-1005(c) (West 2014). “The[se] documents are construed
strictly against [the] movant and in the light most favorable to the nonmovant.” Id. Moreover,
“[w]here a reasonable person could draw divergent inferences from undisputed facts, summary
judgment should be denied.” Id. “We review a ruling on summary judgment de novo.” Id. ¶ 12.
¶ 15 Plaintiff argues that defendant’s motion for summary judgment should have been denied
because a genuine issue of material fact exists as to whether defendant knew about the displaced
sidewalk slabs before plaintiff fell. Defendant invokes section 3-102(a) of the Act and argues that,
because it never had notice of the displaced sidewalk slabs, it cannot be liable to plaintiff for her
injuries.
¶ 16 Under the Act, a municipality “ ‘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.’ ” Id. ¶ 14 (quoting 745 ILCS 10/3-102(a) (West 2014)). Actual notice under
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2022 IL App (2d) 200575-U“[s]ection 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.” Id. ¶¶ 16, 17-18. Constructive
notice arises “[w]here a condition has existed for such a length of time, or was so conspicuous,
that authorities exercising due diligence might have known of it.” Id. ¶¶ 15, 19.
¶ 17 Although “[t]he question of notice is generally one of fact, [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 *** that no contrary verdict could ever stand.” Id. ¶ 14. “The burden of
proving notice is on the [plaintiff].” Id.; Monson, 2018 IL 122486, ¶ 23.
¶ 18 Plaintiff argues that summary judgment was improper because the record creates an issue
of material fact as to whether defendant either (1) created the dangerous condition of the sidewalk
or (2) had actual or constructive notice of the displaced sidewalk slabs in adequate time to have
taken measures to repair the sidewalk before plaintiff fell.
¶ 19 We first consider whether defendant created the dangerous condition. As defendant notes,
there is nothing in the record indicating, as plaintiff has alleged, that roots from the tree abutting
the sidewalk caused the displacement of the sidewalk slabs. Although Stockman indicated that
the tree’s roots might “[p]ossibly” have caused the displacement, his speculation simply was not
enough to withstand defendant’s motion for summary judgment. See Townsend v. Anderson, 2019
IL App (1st) 180771, ¶ 23 (“To survive a motion for summary judgment, the nonmoving party
need not prove his case at this preliminary stage of litigation; however, the plaintiff must present
some evidentiary facts, not mere speculation or conjecture, to support each element of his cause
of action, which would arguably entitle him to a judgment.”).
¶ 20 The cases plaintiff relies on to support her claim that defendant created the displaced
sidewalk slabs are distinguishable. See Harding v. City of Highland Park, 228 Ill. App. 3d 561,
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2022 IL App (2d) 200575-U563, 571 (1992) (city’s affirmative act of removing a water meter cover and failing to properly
replace it caused the plaintiff’s injury such that no actual or constructive notice of the condition is
required); Dziewatkowski v. City of Chicago, 109 Ill. App. 2d 405, 407, 415-16 (1969) (where city
piled a mound of clay and dirt on the parkway next to sidewalk after installing new lighting system,
which resulted in material being washed onto the sidewalk so that it became slippery and
dangerous, city liable for improper formations caused in an artificial and unnatural way). Here,
even if defendant planted the tree and its roots caused the displacement of the sidewalk slabs over
time, planting a tree is not like misplacing a meter cover (as in Harding) or piling a mound of clay
and dirt next to a sidewalk (as in Dziewatkowski). That is, the mere act of planting a tree cannot
be said to dispense with actual or constructive notice that the tree’s roots had actually displaced
the sidewalk slabs years later. See Harding, 228 Ill. App. 3d at 569; Dziewatkowski, 109 Ill. App.
2d at 415-16. We conclude that no genuine issue of material fact exists as to whether defendant
created the dangerous condition.
¶ 21 We likewise conclude that no triable issue exists as to whether defendant had actual or
constructive notice of the displaced sidewalk slabs. First, there was no evidence of actual notice.
Defendant received no complaints about the displaced sidewalk slabs before plaintiff fell. Indeed,
the first-time defendant even heard about the displacement was after plaintiff fell. Summary
judgment, therefore, was proper on the issue of actual notice. See Zameer, 2013 IL App (1st)
120198, ¶ 18.
¶ 22 Nor can we conclude that defendant had constructive notice of the displaced sidewalk
slabs. Although defendant claims that the displaced slabs were in a busy area, no evidence
indicated how long the slabs were displaced. There is no basis for plaintiff’s contention that the
slabs must have been displaced for a long time because the disruption from the tree roots would
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2022 IL App (2d) 200575-Uhave been gradual. As noted, nothing but sheer speculation indicates that the tree’s roots were
even the source of the displacement. Moreover, no evidence indicated that defendant should have
known of any issue with that portion of the sidewalk. Kovanda attested that the sidewalk was
extensively cracked when he observed it at some unidentified time after plaintiff fell. His
description, however, is not supported by the photos, which reveal that the height differential
between the slabs was minimal and that the west slab was cracked only at the corner. This suggests
that Kovanda either was attesting to a portion of the sidewalk not involved in plaintiff’s fall, or
that the sidewalk fell into greater disrepair sometime after plaintiff was injured. Without evidence
indicating the length of time that the sidewalk slabs were displaced or that the poor condition of
the sidewalk was conspicuous, we cannot conclude that a genuine issue of material fact exists as
to whether defendant had constructive notice. Id. ¶ 21.
¶ 23 We also note that Monson is inapplicable here. In Monson, the City of Danville had a
program to inspect and repair sidewalks in its downtown area. Monson, 2018 IL 122486, ¶ 4.
While the program was in place, the plaintiff tripped and fell on a sidewalk that appeared to fall
within the parameters of the program. Id. ¶¶ 3-5. At issue on appeal to our supreme court was
whether the defendant was entitled to summary judgment because it was immune from liability
pursuant to sections 2-109 and 2-201 of the Act (745 ILCS 10/2-109, 2-201 (West 2014)).
Monson, 2018 IL 122486, ¶ 14. Those sections concern a city’s immunity from liability for an
injury caused by its employee’s determination regarding policy or exercise of discretion. Monson,
2018 IL 122486, ¶¶ 17-18. In addressing whether the defendant was immune from lability, the
court made clear that section 3-102(a) of the Act is separate and distinct from sections 2-109 and
2-201 of the Act. Id. ¶ 25. That is, while sections 2-109 and 2-201 confer immunity, section 3-
102(a) “merely codifies the common-law duty of a local public entity to maintain its property in a
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2022 IL App (2d) 200575-Ureasonably safe condition.” Id. ¶¶ 24-25. Thus, while a municipal defendant must prove under
sections 2-109 and 2-201 that it is immune from liability, it is the plaintiff that must establish under
section 3-102(a) that the municipality had notice. Id. ¶¶ 23, 34. The court in Monson ultimately
held that, given the absence of “evidence of the [defendant’s] decision-making process with
respect to the specific site of plaintiff’s accident,” the defendant failed to meet its burden of
establishing immunity. Id. ¶¶ 38-39. Thus, the defendant was not entitled to summary judgment
based on its claim of discretionary immunity. Id. ¶ 39.
¶ 24 Here, unlike in Monson, defendant has not claimed immunity under section 2-109 and 2-
201 of the Act. Moreover, to the extent that Monson addressed a system for fixing damage to city
property, Monson is not helpful here. Unlike in Monson, where the evidence indicated that the
plaintiff fell on a sidewalk covered by the defendant’s sidewalk-inspection program, nothing
indicates that the displaced sidewalk slabs on which plaintiff fell were subject to any program to
fix sidewalks in the Rockford area.
¶ 25 Citing section 3-102(b) of the Act (745 ILCS 10/3-102(b) (West 2014)), plaintiff argues
that a municipality must have an effective system in place to check on its property’s unsafe
conditions and that, without such a system in place, a municipality is liable for injuries caused by
these unsafe conditions. Section 3-102(b) of the Act has no such requirement. “[A]lthough section
3-102(b) describes circumstances by which the defendant may prove its lack of constructive notice,
it does not relieve the plaintiff of the initial burden, codified in section 3-102(a), of proving the
defendant’s actual or constructive notice.” Krivokuca v. City of Chicago, 2017 IL App (1st)
152397, ¶ 60. Without proof of notice, “[s]ection 3-102(a) shields [a municipality] from liability,
regardless of whether the [the municipality] proved a reasonably adequate inspection system
pursuant to section 3-102(b).” Id.-9-
2022 IL App (2d) 200575-U¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we affirm the judgment of the circuit Winnebago County.
¶ 28 Affirmed.
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