Nguyen v. Lam

Digitally signed by

Reporter of Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2018.01.23

15:45:06 -06'00'

Nguyen v. Lam, 2017 IL App (1st) 161272

Appellate Court LINH PHUNG HOANG NGUYEN, Plaintiff-Appellant, v.

Caption NHUTAM LAM and HUNG LAM, Defendants-Appellees.

District & No. First District, Fifth Division

Docket No. 1-16-1272

Filed November 3, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-9403; the

Review Hon. Eileen M. Brewer, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Staver Law Group, P.C., of Chicago (Tyler Kobylski, of counsel), for

Appeal appellant.

Bruce Farrel Dorn & Associates, of Chicago (Ellen J. O’Rourke,

Kenneth E. Klimczak, and Renee M. Mehl, of counsel), for appellees.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with

opinion.

Presiding Justice Reyes and Justice Hall concurred in the judgment

and opinion.

OPINION

¶1 Plaintiff Linh Phung Hoang Nguyen filed this personal injury action seeking damages for

injuries she sustained when she stepped on a catch basin in a backyard and the lid gave way.

The Cook County circuit court granted summary judgment in favor of defendants Nhutam

and Hung Lam, who owned the property on which the catch basin was located.

¶2 On appeal, plaintiff contends that granting summary judgment was improper because she

presented enough evidence to create a genuine issue of material fact regarding defendants’

constructive knowledge of the dangerous condition where the testimony and photographs of

the rusty catch basin lid and deteriorated surrounding concrete showed those conditions had

existed for a sufficient length of time. Plaintiff also argues that she was not required to

present expert testimony about the duration of the dangerous condition.

¶3 For the reasons that follow, we reverse the judgment of the circuit court.

¶4 I. BACKGROUND

¶5 According to the parties’ affidavits and deposition testimony, in 1989, defendants

purchased a two-story residential building at 1414 W. Winnemac Avenue in Chicago (the

property) and lived there until 2010. Defendants maintained the backyard of the property and

allowed their tenants to use the backyard, which contained a catch basin with a metal lid.

Defendant Mr. Lam noticed the catch basin in 1989 when he and his wife purchased the

property. The previous owner told Mr. Lam to look into the catch basin to make sure it did

not get clogged with sewage, but Mr. Lam never followed this instruction or advice because

sewage never came up the drain inside the home.

¶6 In 1992, defendants hired professional cleaners to clean the well of the catch basin, and

no one told Mr. Lam that the catch basin needed additional work. Defendants never

performed any maintenance or repairs to the catch basin or lid since they purchased the

property in 1989, and the catch basin has not been cleaned, inspected, or modified since

1992. Mr. Lam regularly inspected, cleaned, and swept the backyard, repaired anything that

was broken, cut the grass, and shoveled the snow. He walked over the catch basin, had seen

others walk across it, and never noticed any problem with the catch basin. Before plaintiff’s

injury, no one told him that the lid was loose, out of place, or did not fit properly. Just a few

weeks before plaintiff’s injury, Mr. Lam cleaned the backyard area and did not inspect the

catch basin or notice any problem with it.

¶7 Plaintiff was injured in August 2014, at about 6 p.m., while she was walking on the

sidewalk in defendants’ backyard. Specifically, plaintiff and her boyfriend had parked his car

in the garage located at the rear of the property and were carrying groceries as they walked

through the backyard toward his parents’ apartment. When plaintiff’s left foot stepped onto

the lid of the catch basin, it flipped to a vertical position and caused her to fall into the well

and straddle the edge of the vertical metal lid. She sustained an injury to her groin area.

¶8 With the help of her boyfriend, plaintiff went inside the apartment of his parents, and his

mother telephoned Mr. Lam. The mother was outside when Mr. Lam arrived at the scene and

saw that the lid was in the vertical position. He pushed it down into place with his foot and

stood on the lid with both feet. The mother said that the lid was broken, but Mr. Lam said

-2-

that it was not. Mr. Lam did not see any blood at the scene and did not believe that plaintiff

ever fell into the catch basin well.

¶9 Plaintiff went to the hospital and was diagnosed with a vulvar hematoma, which required

surgery. Photographs of the catch basin were taken immediately after the occurrence. A

photograph of the lid in place on the catch basin shows that the top of the lid is rusted and the

circumference of the lid is worn and deteriorated. Moreover, the circle concrete surface

surrounding the catch basin is deteriorated and has two large cracks and a thinner crack.

Those cracks span the distance between the outside rim of the concrete circle and its inside

rim, which surrounds the lid of the catch basin. Photographs of the lid tipped in a vertical

position in the catch basin show substantial corrosion of the concrete lip upon which the

metal lid must rest to remain stable and in place. In these photographs, the rusted, uneven

edge of the lid is more obvious. A photograph of the lid removed from the catch basin shows

substantial corrosion and deterioration of the lid, the concrete surrounding the catch basin,

and the concrete lip of the catch basin.

¶ 10 After plaintiff was injured, Mr. Lam initially placed a board and a couple of chairs over

the catch basin. About two months later, workers lifted the lid, spread cement around the lip

of the catch basin, and replaced the lid.

¶ 11 In her negligence complaint, plaintiff alleged that defendants failed to exercise reasonable

care in the ownership, maintenance, and inspection of their property. Specifically, plaintiff

argued that defendants failed to maintain the catch basin and lid in a reasonably safe and

proper condition, failed to conduct reasonable inspections of the basin and lid, and failed to

repair or replace the basin and lid in a timely manner. Defendants denied any liability, and

the parties engaged in discovery.

¶ 12 Defendants moved for summary judgment, asserting that none of the evidence gave rise

to an inference that they had actual or constructive notice of the dangerous condition.

¶ 13 In response, plaintiff argued that summary judgment was precluded because Mr. Lam

admitted that he never inspected the catch basin or lid after 1992 and a videotape and

photographs clearly showed the rusted condition of the catch basin lid and the deteriorated

concrete around the catch basin. Plaintiff argued that reasonable jurors could infer that the

extensive corrosion of metal and concrete indicated that the dangerous condition existed for a

sufficient duration to have given constructive notice of the danger to defendants, who had

regularly inspected and maintained the backyard during the 22 years that elapsed since the

catch basin was last cleaned and up to the date of plaintiff’s injury.

¶ 14 Defendants moved to strike plaintiff’s videotape because it was not accompanied by an

affidavit to authenticate it and establish a foundation for its admission into evidence.

¶ 15 The circuit court granted defendants’ motion to strike the videotape based on plaintiff’s

failure to provide a proper foundation for the video. The circuit court also granted

defendants’ motion for summary judgment, rejecting plaintiff’s assertions that the corroded

concrete was visible and a layperson would be able to know that such corrosion would have

taken place over a considerable amount of time. Citing Zameer v. City of Chicago, 2013 IL

App (1st) 120198, the circuit court stated that plaintiff did not present expert testimony

concerning the duration of the defect and photographs of general defects were not sufficient

to impute notice to the defendants without evidence of the specific defect.

-3-

¶ 16 Plaintiff moved the circuit court to reconsider the order granting defendants summary

judgment. The circuit court denied the motion, stating that plaintiff failed to meet her burden

to provide facts showing that defendants had constructive notice of the condition. The circuit

court stated that the mere fact of the rusty cover did not provide defendants with timely

notice of the specific defect that caused plaintiff’s injury and plaintiff did not present any

expert evidence about the duration of the defect. Plaintiff timely appealed.

¶ 17 II. ANALYSIS

¶ 18 Plaintiff contends that material issues of fact exist on the question of whether defendants

had constructive notice of the condition of the catch basin. She notes that photographic

evidence showed such severe deterioration of the concrete and catch basin lid, which would

have happened gradually over a significant period of time. Moreover, Mr. Lam testified that

he regularly inspected and maintained the backyard, was aware of the catch basin, and had

walked and stood on it. Accordingly, plaintiff contends that whether defendants reasonably

should have discovered the dangerous condition is a question for the jury. We agree.

¶ 19 This court reviews a circuit court’s order granting summary judgment de novo.

Seitz-Partridge v. Loyola University of Chicago, 409 Ill. App. 3d 76, 82 (2011). Summary

judgment is appropriate only when the “pleadings, depositions, and admissions on file,

together with 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.” 735 ILCS 5/2-1005(c)

(West 2014). Because summary judgment is a drastic means of disposing of litigation, it

should be denied and the issue decided by the trier of fact “where reasonable persons could

draw divergent inferences from the undisputed material facts or where there is a dispute as to

a material fact.” Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113-14 (1995).

“The documents are construed strictly against the movant and in the light most favorable to

the nonmovant.” Zameer, 2013 IL App (1st) 120198, ¶ 13. The purpose of summary

judgment is to determine whether a genuine issue of material fact exists, not to try a question

of fact; accordingly, the circuit court may not weigh the evidence or make credibility

determinations. Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011); AYH Holdings, Inc. v.

Avreco, Inc., 357 Ill. App. 3d 17, 31 (2005).

¶ 20 Property owners have a duty to exercise ordinary care in maintaining their property in a

reasonably safe condition. Chapman v. Foggy, 59 Ill. App. 3d 552, 555 (1978). Owners have

a duty to exercise reasonable care to discover defects or dangerous conditions existing on

their property and either correct them or give sufficient warning to enable those lawfully on

the land to avoid the danger. Id. It is not necessary for the plaintiff to show that the owners

had actual knowledge of the dangerous condition. Id. If, in the exercise of ordinary care, the

owners should have discovered the condition, i.e., if they had constructive notice of it, they

may be held liable. Id. at 555-56. Constructive notice can be shown only where the

dangerous condition is shown to exist for a sufficient length of time to impute knowledge of

its existence to the defendants. Ishoo v. General Growth Properties, Inc., 2012 IL App (1st)

110919, ¶ 28; see also Pittman v. City of Chicago, 38 Ill. App. 3d 1036, 1039 (1976) (the

evidence was sufficient to support a finding of constructive notice where a photograph

showed the defective condition of the sidewalk and the plaintiff testified that the defective

condition existed for the entire time—about six years—that she traveled the block while

employed at a factory). Illinois courts have ruled that it is in the province of the trier of fact

-4-

to determine whether the plaintiff has established that the defect existed long enough to

impute knowledge of its existence to the defendant. Chapman, 59 Ill. App. 3d at 556;

Guenther v. Hawthorn Mellody, Inc., 27 Ill. App. 3d 214, 218 (1975).

¶ 21 In Baker v. Granite City, 311 Ill. App. 586, 593 (1941), the plaintiff was injured while

walking on a catch basin cover that tilted and slid aside, and the trial testimony indicated that

at the time of the plaintiff’s injury the catch basin flange was corroded and rusted and the

bottom of the cover had “a good deal of rust on it” and its lower edge was worn off “as thin

as a piece of cardboard.” Although no witness had testified about how long the deteriorated

condition had existed prior to the plaintiff’s injury, the court stated that “[i]t is a matter of

common knowledge that iron will often rust and corrode when exposed to water and weather

and that such rust and corrosion do not generally occur to any considerable extent or degree

in a short period of time.” Id.

¶ 22 The Baker court held that the trial court erred in granting the defendant’s motion for a

directed verdict because the jury could reasonably infer that the condition of the catch basin

at the time of the plaintiff’s injury had occurred gradually over a considerable period of time

and that the presence of such rust and corrosion and the worn condition of the cover might

have been discovered and remedied by the defendant on reasonable inspection. Id. The court

concluded that it was a question of fact for the jury to determine whether the “defective

conditions were of such a character and had existed for such a length of time that the

defendant might have discovered and remedied them, and to determine whether or not the

defendant was negligent in this respect.” Id. at 594.

¶ 23 Here, there was evidence from which a jury could conclude that the deteriorated

condition of the catch basin existed for a sufficient time that defendants should have been

aware of it. Specifically, Mr. Lam testified that he lived at the property from 1989 until 2010,

regularly inspected and maintained the backyard, and had walked and stood on the catch

basin. He was aware of the catch basin since he and his wife purchased the property in 1989,

but he never inspected or maintained the catch basin or lid aside from having the well

cleaned in 1992. Although the previous property owner told Mr. Lam to look into the catch

basin to make sure it did not get clogged with sewage, Mr. Lam said that he never followed

that instruction or advice. Furthermore, the photographs show that some deterioration of the

catch basin (the cracked concrete surface and rusted lid) was visible even when the lid was in

place over the well of the catch basin. Also, the photographs of the cracked and corroded

concrete upon which the rusty catch basin lid rested indicate that the catch basin’s defective

condition existed for a considerable amount of time because concrete and metal deteriorate

gradually. See id. at 593.

¶ 24 Construing the documents, testimony, and photographs strictly against defendants and in

the light most favorable to plaintiff, we find that a genuine issue of fact exists concerning

whether defendants had constructive notice of the dangerous condition. A reasonable trier of

fact could infer from the cracked concrete surface, corroded concrete lip, and rusty lid that

the defective condition of the catch basin existed for a sufficient duration to have given

constructive notice to defendants, who should have discovered the defect by the exercise of

reasonable care.

¶ 25 Defendants argue the circuit court properly awarded them summary judgment and rely on

Zameer, 2013 IL App (1st) 120198, to support their assertion that plaintiff failed to present

sufficient evidence to create a genuine issue of material fact about their constructive notice.

-5-

In Zameer, the plaintiff alleged that she sustained injuries requiring surgery when she tripped

and fell due to an approximately two-inch height disparity between two sidewalk slabs. Id.

¶ 4. The defendant municipality asserted it was immune from liability under the Local

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745

ILCS 10/3-102(a) (West 2010)) because it did not have notice of the raised sidewalk that

caused her fall in adequate time to have taken measures to repair the sidewalk. Zameer, 2013

IL App (1st) 120198, ¶¶ 5, 14-15. “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.” Id. ¶ 16. The municipality moved for summary

judgment, and the plaintiff argued, inter alia, that photographs of the defective sidewalk were

sufficient evidence to show constructive notice. Id. ¶¶ 9, 22.

¶ 26 The Zameer court held that summary judgment for the municipality was proper because

the plaintiff failed to present sufficient evidence to create a genuine issue under the Tort

Immunity Act as to whether the municipality had constructive notice of the defect, i.e., that

the condition existed for such a length of time or was so conspicuous that authorities

exercising reasonable care and diligence might have known of it. Id. ¶¶ 19, 20, 22.

Specifically, both the plaintiff and her companion at the time of the injury testified that they

did not know how long the defect existed, and a civil engineer employed by the

municipality’s department of transportation “testified that there is no way of telling how long

the defect existed” and “it could have developed in as little as three weeks.” Id. ¶¶ 20-22.

¶ 27 Defendants’ reliance upon Zameer is misplaced because it is distinguishable from the

present case. In Zameer, the photograph of the sidewalk slabs did nothing to indicate that the

alleged defect—the two-inch height difference between the slabs—had existed for a

sufficient length of time to constitute constructive notice, particularly in light of the civil

engineer’s testimony that the condition could have developed in as little as three weeks.

Here, in contrast, the photographs of the corroded and rusted condition of the catch basin

indicate, as discussed above, that such deterioration of concrete and metal occurs gradually

over time. Moreover, Mr. Lam testified that the catch basin was not inspected for 22 years.

¶ 28 Finally, we reject defendants’ assertion that plaintiff was required to present expert

testimony about the duration of the defect. It is well settled that a trial court exercises its

discretion to allow a person “to testify as an expert if his experience and qualifications afford

him knowledge that is not common to laypersons, and where his testimony will aid the trier

of fact in reaching its conclusions.” Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006).

Moreover, “[p]laintiffs are not required to prove their case at the summary judgment stage.”

Thompson, 241 Ill. 2d at 438. Here, a trier of fact viewing the photographs reasonably may

discern the age and duration of the dangerous condition of the catch basin as having been in

existence for a very long time, and such opinion is not within the sole province of an expert

witness. See Pittman, 38 Ill. App. 3d at 1039 (rejecting the municipality’s assertion that only

a cement mason, contractor, or engineer was qualified to express an opinion as to how long

the dangerous sidewalk condition, as depicted in a photograph, had existed).

¶ 29 III. CONCLUSION

¶ 30 The circuit court erred in granting defendants summary judgment because plaintiff

presented sufficient evidence to show a genuine issue of material fact about whether

defendants had constructive notice of the dangerous condition of the catch basin. A jury

-6-

could infer from the testimony and photographic evidence that the deteriorated condition of

the catch basin and surrounding concrete occurred over an extended period of time so that

defendants would have discovered the dangerous condition in the exercise of reasonable care.

Accordingly, we reverse the judgment of the circuit court and remand this cause.

¶ 31 Reversed and remanded.

-7-