Ory v. City of Naperville

2023 IL App (3d) 220105

Opinion

2023 IL App (3d) 220105

Opinion filed May 11, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

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

2 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.

3 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

4 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.

5 ¶ 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.

6 ¶ 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

7 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.

8 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:

9 “(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

10 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

11 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.

12 ¶ 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.