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Wednesday, October 9, 2013

City's Knowledge of Defect Important in 2 Sidewalk Cases

Local governments find themselves defending a significant number of trip and fall cases involving municipally maintained sidewalks.  The issue of liability often turns on two factors:  (1) did the municipality owe a duty to the plaintiff and (2) if yes, did the municipality breach that duty?  At issue in a recent appellate court case was the first factor - did the City of Centralia owe the plaintiff a duty of reasonable care in maintaining a section of sidewalk that allegedly caused plaintiff's injuries?  The appellate court answered that question in the affirmative, and sent the case back to the trial court to determine whether the City's actions (or in this case, inactions) breached that duty in Bruns v. City of Centralia, 2013 IL App (5th) 130094
The plaintiff tripped over a raised section of sidewalk in entering an eye clinic appointment, injuring her shoulder and arm.  Over time, an adjacent tree's root system had caused a concrete section of the sidewalk to crack and create an uneven section about three inches above the adjacent concrete slabs and grass.  The clinic had previously reported the defective condition on numerous occasions and had offered to remove the tree at the clinic's expense.  However, the City refused removal of the tree because the City's tree committee had determined the tree had historic significance. 
At trial, the City's public works foreman testified that the sidewalk was hazardous and a danger to pedestrians.  He also acknowledged that the City knew about the condition. Nevertheless, the trial court determined that the City owed no duty to the plaintiff or others to maintain the sidewalk. The appellate court disagreed, first finding that the City, as the owner of the sidewalk, owed a duty to maintain the sidewalk in a reasonably safe condition.  Further, dangerous conditions must be removed or corrected, or a warning must be provided.  Although an owner owes no duty to guard against injuries from open and obvious dangers, the appellate court held that the "distraction" exception applied in this circumstance because it was reasonable to foresee that an elderly patient of an eye clinic may not be focusing on the sidewalk when accessing the clinic.
The court focused on the circumstances leading up to the injury, particularly the City's knowledge of the dangerous situation for years and its refusal to correct the condition, as well as previous incidents involving that particular sidewalk condition. As a result, the court sent the case back to the trial court for a determination of whether the City breached its duty of reasonable care to the plaintiff. 

Governments are not always responsible for all injuries that occur on sidewalks or other public property, however.  Recall the case we  reported on in August, Zameer v. Chicago.  In that case, the court ruled that the municipality was not liable for a sidewalk condition where it did not know about the defective condition.

In Zameer, the Plaintiff alleged that she broke her wrist, requiring surgery, when she tripped and fell on a Chicago sidewalk due to a difference in height of two inches between two sidewalk slabs.  The Trial Court dismissed the complaint and the Appellate Court affirmed.  The Appellate Court opinion talks about the Illinois Tort Immunity Act:   “The purpose of the Act is to protect local governments and their employees from liability arising out of the operation of government, and the Act therefore grants immunity and defenses…the Tort Immunity Act provides the local public entity, 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”.  The Court goes on to say that the question of notice is generally one of fact.  Where, however, a condition has existed for a length of time, or is so conspicuous, that authorities exercising due diligence might have known of it, the Plaintiff can establish notice without proving that the government actually knew of the condition.  In addition, the actual notice of facts which would put a reasonably prudent person on inquiry render the authorities chargeable with knowledge of any fact that might be discovered by reasonable investigation. 

In an effort to prove that notice was or should have been present, the Plaintiff presenting evidence that there were multiple prior complaints about the sidewalk on the east side of the street made in 2005.  The injury occurred in 2010.  The Appellate Court decision determines that other sidewalk defects on the same block are not sufficient notice.  Based on those facts, the Court determined that there was no actual notice.

A witness was presented by the City who testified that the defect in the sidewalk might have occurred as little as three weeks before the date of the accident.  The Plaintiff was unable to present any evidence that the defect existed for a longer period of time.  The Appellate Court decision contains many cases in which Plaintiffs were able to show that a particular area where the sidewalk defect occurred was well traveled and that the municipality should have known that a defect occurred because of other complaints.  Unfortunately Ms. Zameer chose a quiet residential street on which to fall and could produce no actual history or implication that the City knew about the defect before the accident or should have known about it.  Communities that can prove that they have active inspection programs and promptly fix known defects have a good chance of avoiding liability for random and obscure property defects. 


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