Ory v. City of Naperville , 2023 IL App (3d) 220105 ( 2023 )

2023 IL App (3d) 220105Opinion filed May 11, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
RAMONA L. ORY, ) Appeal from the Circuit Court
) of the 18th Judicial Circuit,
Plaintiff-Appellant, ) Du Page County, Illinois.
)
v. ) Appeal No. 3-22-0105
) Circuit No. 18-L-486
CITY OF NAPERVILLE, an Illinois municipal )
body, ) The Honorable
) Bryan S. Chapman,
Defendant-Appellee. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HETTEL delivered the judgment of the court, with opinion.
Justices Albrecht and McDade concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Plaintiff Ramona Ory fell while walking on a pedestrian bridge in defendant City of
Naperville (City). Thereafter, plaintiff filed a two-count complaint against the City, asserting
causes of action for negligence and premises liability. The City filed a motion for summary
judgment, which the trial court granted. Plaintiff appeals the trial court’s order granting summary
judgment to the City. We affirm.
¶2 I. BACKGROUND
¶3 On July 8, 2017, at approximately 11:40 p.m., plaintiff fell and was injured as she walked
over the Main Street pedestrian bridge in the City’s downtown area. On May 1, 2018, plaintiff
filed a two-count complaint, alleging negligence and premises liability against the City. Plaintiff
alleged that her fall was caused by a “sidewalk defect,” consisting of “abrupt changes in height”
in excess of 1 1/2 inches in the area of the sidewalk where she fell. She alleged the “sidewalk
defect” had existed “for a long time prior to the incident.” She further alleged the City failed to (1)
warn pedestrians of the defect, (2) provide adequate lighting to illuminate the defect, and (3) repair
the defect.
¶4 The City filed a motion to dismiss, arguing that the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2016))
precluded plaintiff’s action. The circuit court denied the motion. Thereafter, the parties took
depositions of several individuals, including plaintiff and employees of the City. Based on those
depositions, the following facts were established.
¶5 On July 8, 2017, plaintiff was 62 years old. That evening, between 6:00 and 6:30 p.m.,
plaintiff met two friends for dinner at a restaurant in the City’s downtown area. After dinner,
plaintiff and her friends walked around downtown. Plaintiff fell while walking on the Main Street
bridge in an area where a concrete expansion joint met adjacent concrete brick pavers. At the time
of plaintiff’s fall, the brick pavers had sunk or settled, causing a decrease in the height of the
walking surface. Plaintiff did not see the height discrepancy between the brick pavers and adjacent
concrete before she fell, but she and her friends noticed it after plaintiff’s fall. When plaintiff fell,
she and her friends were the only individuals on the bridge. Plaintiff agreed there were at least five
streetlights near the area of her fall, including one directly above where she fell. However, plaintiff
described the lights as “not bright” and said she did not know if all the streetlights were on at the
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time of her fall. Plaintiff believed “a lack of lighting in the area” contributed to her fall. Plaintiff
had no knowledge of anyone else falling in the location where she fell.
¶6 Keith Kania, a private investigator hired by plaintiff, measured the deviations between the
concrete and brick pavers where plaintiff fell and found them to be between 7/8 inch to 1 1/2 inches
in height. Kania had no knowledge that the City was aware of the deviations or that other people
had fallen at the location where plaintiff fell. Kania testified that there were three streetlights on
the side of the bridge where plaintiff fell: one at the south end of the bridge, one in the middle of
the bridge, and one at the north end of the bridge. Kania testified a streetlight is located directly
above where plaintiff’s fall occurred.
¶7 Deputy City Engineer/Engineering Manager Andrew Hines testified that the Main Street
bridge is owned and maintained by the City. Hines stated the entire bridge, including the sidewalks
located on it, was reconstructed in 2005. Hines was the project engineer for the Main Street bridge
reconstruction project. Hines did not inspect any part of the bridge after the 2005 reconstruction
was complete.
¶8 According to Hines, the City has a sidewalk replacement program, and that program was
in place at the time of plaintiff’s fall. The program requires sidewalks to be inspected when (1) the
road adjacent to a sidewalk is resurfaced, or (2) the City receives a complaint about a sidewalk.
Pursuant to the program’s guidelines, the City repairs or replaces a sidewalk when an inspection
reveals a one-inch or more differential between sidewalk sections. According to Hines, Main Street
has not been resurfaced since 2005, and the City “received no complaints about the sidewalk in
question other than the plaintiff’s lawsuit.”
¶9 Marco Marino, a road construction and sidewalk inspector for the City, testified he was
directed by the City to inspect the sidewalk on the Main Street bridge as a result of plaintiff’s fall.
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Marino inspected the sidewalk on the bridge on May 25, 2018, and found the height difference
between the pavers and concrete met the criteria for replacement, meaning there was “a height
difference of one inch or more.” Marino did not record the height difference because he found “no
reason” to do so. If the height difference meets the City’s criteria for replacement, Marino “mark[s]
it out to be repaired” and identifies “the areas of what needs to be fixed.” According to Marino,
the City replaced all the sidewalks on Main Street bridge on September 18, 2018.
¶ 10 Marino also knew about the City’s sidewalk replacement program. He testified that in order
for a section of sidewalk to qualify for the program, one of the following conditions must exist:
(1) “[s]idewalk must be sunken or risen to a height difference of one inch or more between
sections,” (2) “sidewalk must be broken or separated into three or more pieces,” or (3) “50 percent
or more of the sidewalk surface must be deteriorated.” Marino did not know when the deviation
between the sidewalk concrete and pavers where plaintiff fell first appeared. Marino did not inspect
the bridge before May 25, 2018.
¶ 11 Robert Kozurek testified that he worked as the deputy engineer for the City from the late
1990s until his retirement in 2017. As the City’s deputy engineer, Kozurek inspected City bridges,
roadways and sidewalks. According to Kozurek, City bridges were inspected every four years.
Kozurek testified that he inspected the Main Street bridge on September 9, 2015. He did not have
an independent recollection of the details of his September 9, 2015, inspection, but he completed
a memorandum about his inspection the following day. Based on his memorandum, Kozurek
determined the sidewalks on and adjacent to the bridge were “okay.” He noted no defects, sinking
or settling. Kozurek said he would have noted a sidewalk defect and reported it if it met the criteria
for replacement. Kozurek was familiar with the City’s sidewalk replacement program and testified
about the criteria for replacement of sidewalks, including a one-inch or more height differential
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between sidewalk sections. Based on his notes, Kozurek testified that no sidewalks adjacent to the
bridge on September 9, 2015, had sunken or risen to a height difference of more than one inch.
Kozurek did not know when the pavers began to sink or settle on the Main Street bridge and agreed
that settling could be caused by the “freeze/thaw cycle.”
¶ 12 During Kozurek’s deposition, plaintiff’s counsel attempted to question Kozurek about
Google Earth photos of the area in question purportedly taken in 2012 and thereafter. Defense
counsel objected. Over that objection, Kozurek agreed that the area of the sidewalk where plaintiff
fell appeared to be “not flush” in 2012. He believed there was a “small amount of difference”
between the concrete and pavers at that time but could not estimate what that difference was. He
agreed that Google Earth photos from 2013 also showed the area of the sidewalk was “not flush”
but could not tell from the photos how much the pavers had sunk at that time. When Kozurek was
shown a Google Earth photo time stamped in October 2016, with a “Sidewalk Closed” sign on the
roadway of the bridge adjacent to the sidewalk, Kozurek said he did not know why the sign was
there. He speculated: “There must have been construction in the area or something.” Kozurek
agreed the 2016 Google Earth photo showed the sidewalk was “not flush” in the area where
plaintiff fell.
¶ 13 After all relevant witnesses were deposed, the City filed a motion for summary judgment,
arguing that it was immune from liability because (1) it had no notice of the alleged sidewalk
defect, (2) the alleged defect was de minimis, and (3) it maintained a sidewalk inspection and
replacement program. In response to the City’s motion, plaintiff asserted that “[u]ndisputed
photographic evidence from Google Earth demonstrates that the sunken pavers existed since at
least August 2012.” In its reply, defendant argued that the Google Earth photos could not be used
for the purposes offered by plaintiff.
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¶ 14 A hearing on defendant’s motion for summary judgment was held on February 16, 2022.
At the hearing, plaintiff argued that defendant had constructive notice of the defect in the sidewalk
since August 2012 based on the Google Earth photos. The City responded that the Google Earth
photos were not admissible because plaintiff failed to lay a proper foundation for them and that,
even if the photos were admissible, they did not show the height of the deviation of the sidewalk.
Following the hearing, the trial court entered an order granting summary judgment to the City.
¶ 15 II. ANALYSIS
¶ 16 A. Summary Judgment Standards and Evidence
¶ 17 The purpose of summary judgment is to determine whether a genuine issue of material fact
exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment is
appropriate where the pleadings, affidavits, depositions, admissions, and exhibits on file, when
viewed in the light most favorable to the nonmovant, reveal that there is no genuine issue of
material fact and that the movant is entitled to judgment as a matter of law. Id. at 43; 735 ILCS
5/2–1005(c) (West 2016). In determining whether a genuine issue of material fact exists, the court
must construe the evidence “strictly against the movant and liberally in favor of the opponent.”
Adams, 211 Ill. 2d at 43.
¶ 18 Summary judgment should be used “as an aid in the expeditious disposition of a lawsuit.”
Id. However, it is “a drastic means of disposing of litigation,” so it should be granted only when
the right of the movant is clear and free from doubt. Id. Review of a circuit court's grant of
summary judgment is de novo. Id. We may affirm the circuit court’s order granting summary
judgment on any basis appearing in the record. See Monson v. City of Danville, 2018 IL 122486,
¶ 41.
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¶ 19 “Evidence that would be inadmissible at trial is not admissible in support of or in opposition
to a motion for summary judgment.” Complete Conference Coordinators, Inc. v. Kumon North
America, Inc., 394 Ill. App. 3d 105, 108 (2009). “In civil cases in Illinois, the basic rules of
evidence require a proponent of documentary evidence to lay a foundation for the introduction of
that document into evidence.” Anderson v. Human Rights Comm'n, 314 Ill. App. 3d 35, 42 (2000).
“Evidence must be presented to demonstrate that the document is what its proponent claims it to
be.” Id. “Without proper authentication and identification of the document, the proponent of the
evidence has not provided a proper foundation and the document cannot be admitted into
evidence.” Id.¶ 20 A party may authenticate evidence about a process or system by “describing a process or
system used to produce a result and showing that the process or system produces an accurate
result.” Ill. R. Evid. 901(b)(9) (eff. Sept. 17, 2019). This is how data produced by a computer
program like Google Earth is typically authenticated. See United States v. Lizarraga-Tirado, 789
F.3d 1107, 1110 (9th Cir. 2015); United States v. Espinal-Almeida, 699 F.3d 588, 610-13 (1st Cir.
2012); Jones v. Mattress Firm Holding Corp., 558 S.W.3d 732, 738-39 (Tex. App. 2018).
¶ 21 It is appropriate for a court to take judicial notice of photographs from Google for limited
purposes, such as establishing geographical facts or determining the distance from one location to
another. See, e.g. People v. Davila, 2022 IL App (1st) 190882, ¶ 29 (establishing distance between
various locations); Wisnasky v. CSX Transportation, Inc., 2020 IL App (5th) 170418, ¶ 6
(“assisting the reader in understanding the layout” of a certain intersection); Shaw v. Haas, 2019
IL App (5th) 180588, ¶ 24 (establishing distance between various locations); Peters v. Riggs, 2015
IL App (4th) 140043, ¶¶ 49-50 (establishing existence of pedestrian sidewalks); People v. Clark,
406 Ill. App. 3d 622, 634 (2010) (establishing location of park “only for the purpose of
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understanding the statements made at trial by the witnesses and by the trial court”); People v. Stiff,
391 Ill. App. 3d 494, 504-05 (2009) (establishing distance between two residences). However,
dated Google Earth photos are not admissible absent proper authentication. See Rivera v. City of
New York, 181 A.D. 3d 479, 480 (Sup. Ct. App. N.Y. 2020); City of Miami v. Kho, 290 So. 3d
942, 945 (Ct. App. Fla. 2019); Jones, 558 S.W.3d at 738. The proponent of dated Google Earth
photos must provide evidence describing how the photos are dated and show that the dates on the
photos sought to be admitted are accurate. See Jones, 558 S.W.3d at 738.
¶ 22 B. Tort Immunity
¶ 23 The tort liability of a municipality is governed by the Tort Immunity Act. West v.
Kirkham, 147 Ill. 2d 1, 5 (1992). The purpose of the Tort Immunity Act is to protect local
governments and their employees from liability arising out of the operation of government. Vesey
v. Chicago Housing Authority, 145 Ill. 2d 404, 412 (1991). The Tort Immunity Act “grants only
immunities and defenses.” 745 ILCS 10/1-101.1(a) (West 2016).
¶ 24 Section 3-102(a) of Tort Immunity Act provides that a local public entity is not 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 2016). The
burden of proving notice is on the plaintiff. Zameer v. City of Chicago, 2013 IL App (1st) 120198,
¶ 14. The question of notice is generally one of fact but 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. Id.¶ 25 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.
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Zameer, 2013 IL App (1st) 120198, ¶ 16. To survive summary judgment, the plaintiff needs to
provide evidence sufficient to support a jury finding that the city had either actual or constructive
notice of the defect that caused her fall in adequate time to have taken measures to repair the
sidewalk. See id.¶ 26 Under the Tort Immunity Act, “actual notice means notice of the condition only, not the
unsafe nature of the condition.” Glass v. City of Chicago, 323 Ill. App. 3d 158, 163 (2001) (citing
Vacala v. Village of La Grange Park, 260 Ill. App. 3d 599, 614 (1994)). A municipality’s actual
notice of a condition can be established by (1) a municipal employee’s actual knowledge of the
defect in question (see id.); or (2) a prior report of the defect to the municipality (see Zameer, 2013
IL App (1st) 120198, ¶¶ 17-18). Where there is no evidence that anyone informed the municipality
of the defect before the plaintiff’s injury, a trial court does not err in finding the municipality lacked
actual notice of the defect. See id. ¶ 18.
¶ 27 Constructive notice under section 3-102(a) of the Tort Immunity 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). Where the plaintiff presents no evidence regarding how long a dangerous defect
existed before her injury, she fails to meet her burden of showing that the defendant had
constructive notice of the defect. See Burns v. City of Chicago, 2016 IL App (1st) 151925, ¶¶ 38-
39; Zameer, 2013 IL App (1st) 120198, ¶ 24. In such a case, it is proper for the trial court to grant
summary judgment to the defendant. See Burns, 2016 IL App (1st) 151925, ¶ 39; Zameer, 2013
IL App (1st) 120198, ¶ 24.
¶ 28 Further, section 3-102(b) of the Tort Immunity Act provides that a public entity does not
have constructive notice of a dangerous condition if it establishes either:
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“(1) The existence of the condition and its character of not being reasonably safe
would not have been discovered by an inspection system that was reasonably
adequate ***; or
(2) The public entity maintained and operated such an inspection system with due
care and did not discover the condition.” 745 ILCS 10/3-102(b) (West 2016).
“[T]he burden of establishing the reasonableness of an inspection system under section 3-102(b)
rests with the public entity.” Buford by Buford v. Chicago Housing Authority, 131 Ill. App. 3d 235,
248 (1985).
¶ 29 “[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. Where the plaintiff fails to offer proof of actual or
constructive notice, section 3-102(a) shields a municipality from liability regardless of whether the
municipality proved the existence of a reasonably adequate inspection system pursuant to section
3-102(b). Id.¶ 30 D. De Minimus Rule
¶ 31 Illinois courts follow a de minimis rule in assessing injury claims resulting from elevation
deviations in adjoining municipal sidewalk slabs. Burns, 2016 IL App (1st) 151925, ¶ 20
(citing Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1023 (1997)). Reasoning that a municipality is
not required to keep its sidewalks in perfect condition at all times, courts hold that slight defects
are de minimis and not actionable as a matter of law. Bledsoe, 288 Ill. App. 3d at 1023. A sidewalk
defect is considered de minimis “if a reasonably prudent person would not foresee some danger to
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persons walking on it.” Burns, 2016 IL App (1st) 151925, ¶ 21 (citing Arvidson v. City of
Elmhurst, 11 Ill. 2d 601, 605 (1957)).
¶ 32 “There is no mathematical formula or bright-line test for determining whether a sidewalk
defect is de minimis.” Monson v. City of Danville, 2018 IL 122486, ¶ 43. The question turns on
the facts of each case. Id. (citing Warner v. City of Chicago, 72 Ill. 2d 100, 104 (1978)). Factors
relevant to this analysis include the difference in height between adjoining sidewalk slabs, the
anticipated volume of traffic on the sidewalk, and whether the sidewalk is located in a commercial
or residential area. Id. (citing Birck v. City of Quincy, 241 Ill. App. 3d 119, 122 (1993)). Injuries
on sidewalks located in well-traversed or busy commercial areas are more likely to result in
liability than those in residential areas. Id. (citing Warner, 72 Ill. 2d at 104).
¶ 33 “Usually, a defect approaching a height difference of two inches is not de minimis.” Burns,
2016 IL App (1st) 151925, ¶ 21 (citing Birck, 241 Ill. App. 3d at 122). The plaintiff has the burden
to prove that the defect was not de minimis and may do so by presenting evidence of the size of
the defect and aggravating circumstances. Id; (citing Gillock v. City of Springfield, 268 Ill. App.
3d 455, 458 (1994)). Aggravating circumstances include poor lighting conditions in the area where
the plaintiff fell. See Cook v. Village of Oak Park, 2019 IL App (1st) 190010, ¶ 16 (citing Barrett
v. FA Group, LLC, 2017 IL App (1st) 170168, ¶ 35; Alqadhi v. Standard Parking, Inc., 405 Ill.
App. 3d 14, 19 (2010)).
¶ 34 E. Summary Judgment in this Case
¶ 35 Here, plaintiff contends the circuit court erred in granting summary judgment to the City
because (1) the City had actual and/or constructive notice of the alleged defect in the sidewalk,
and (2) the defect was not de minimis. Plaintiff asserts defendant had actual notice based on the
presence of the “Sidewalk Closed” sign on the street next to the sidewalk, as shown in the Google
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Earth photo from October 2016. She further asserts that defendant had constructive notice based
on the Google Earth photos which show a visible gap between the concrete and brick pavers
beginning in 2012. We disagree.
¶ 36 First, the Google Earth photos were inadmissible because plaintiff provided them to the
court with no foundation nor authentication. See Anderson, 314 Ill. App.3d at 42; Jones, 558
S.W.3d at 738; City of Miami, 290 So. 3d at 945; Rivera, 181 A.D. 3d 479. To establish the Google
Earth photos were actually taken on the dates stamped on them, plaintiff had to present evidence
describing how the photos are dated and that the dates on the photos are accurate. See Ill. R. Evid.
901(b) (eff. Sept. 17, 2019); Jones, 558 S.W.3d at 738. Because the photos were not properly
authenticated, the trial court could not consider them when ruling on defendant’s motion for
summary judgment. See Complete Conference Coordinators, 394 Ill. App. 3d at 108.
¶ 37 Second, even if we were to consider the photos as evidence, they do not establish that
defendant had actual knowledge of a dangerous defect in the condition of the sidewalk. The Google
Earth photo of the “Sidewalk Closed” sign does not establish actual notice by defendant because
there is no evidence that (1) the City placed the sign there, or (2) the sign was placed where it was,
which was in the street next to the sidewalk in question not in front of the sidewalk in question,
because of a defect in the sidewalk. Absent evidence that the City placed the sign in front of the
sidewalk where plaintiff was injured because it was aware that the sidewalk constituted a
dangerous condition and did not repair it, plaintiff failed to establish actual notice by defendant.
Plaintiff also failed to establish the City had actual notice of the dangerous condition of the
sidewalk because there was no evidence presented that anyone ever complained about the
condition of the sidewalk before plaintiff’s fall. See Zameer, 2013 IL App (1st) 120198, ¶ 18.
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¶ 38 Furthermore, plaintiff failed to establish the City had constructive notice because she
presented no admissible evidence about how long the allegedly dangerous condition of the
sidewalk existed. See id. ¶ 24; Burns, 2016 IL App (1st) 151925, ¶ 38. Again, even if we were to
consider the inadmissible Google Earth photos that show a small gap in the sidewalk beginning in
2012, plaintiff presented no evidence establishing how large the gap was at any given time or when
the gap exceeded one inch, making it subject to repair or replacement under the City’s replacement
program. The City, on the other hand, presented evidence that less than two years prior to
plaintiff’s fall, the gap in the sidewalk was less than one inch, based on Kozurek’s deposition
testimony. Because plaintiff failed to establish that the sidewalk was in a dangerously defective
condition for so long that the City should have been aware of it, the trial court properly granted
summary judgment to the City. See Burns, 2016 IL App (1st) 151925, ¶ 39; Zameer, 2013 IL App
(1st) 120198, ¶ 24.
¶ 39 Having concluded that the City lacked actual or constructive notice of the defect in the
sidewalk where plaintiff fell, we need not determine if (1) the City proved it had a reasonably
adequate inspection system (see Krivokuca, 2017 IL App (1st) 152397, ¶ 60), or (2) the defect was
de minimis (see Zameer, 2013 IL App (1st) 120198, ¶ 26). We affirm the trial court’s grant of
summary judgment to the City.
¶ 40 III. CONCLUSION
¶ 41 The judgment of the circuit court of Du Page County is affirmed.
¶ 42 Affirmed.
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