Ory v. City of Naperville

2023 IL App (3d) 220105

219 N.E.3d 1252

467 Ill.Dec. 853

Ramona L. ORY, Plaintiff-Appellant,

v.The CITY OF NAPERVILLE, an Illinois Municipal Body, Defendant-Appellee.

Appeal No. 3-22-0105

Appellate Court of Illinois, Third District.

Rule 23 order filed April 20, 2023

Motion to publish allowed May 11, 2023

Filed May 11, 2023

Willard L. Hemsworth III and Michael J. Lichner, of Rathbun, Cservenyak & Kozol, LLC, of Joliet, for appellant.

Michael DiSanto and Kristen Toberman, of City of Naperville, of Naperville, for appellee.

OPINION

JUSTICE HETTEL delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Ramona L. 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 ½ 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 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 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 ? inch to 1 ½ 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 that 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 that he was directed by the City to inspect the sidewalk on the Main Street bridge as a result of plaintiff's fall. 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 that 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 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 that 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.

¶ 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...