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FIFTH DIVISION
August 24, 2001

No. 1-99-3144

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Plaintiff, Judd Siegel, brought suit against defendant, theVillage of Wilmette, for injuries he sustained when he slipped andfell on ice accumulated on a sidewalk owned by defendant, theVillage of Wilmette. Defendant filed a motion for summary judgmentwhich the trial court granted. On appeal, plaintiff contends thatthe trial court erred in granting defendant's motion for summaryjudgment because a reasonable jury could have concluded that theice was an unnatural accumulation due to the defective nature ofthe sidewalk. We affirm.

On January 24, 1996, plaintiff slipped and fell on thesidewalk located at 3108 Wilmette Road in the residentialneighborhood were plaintiff lived. Plaintiff filed a complaintagainst defendant on January 21, 1997, and alleged that thesidewalk contained sunken sidewalk squares where melting snowaccumulated and formed a shallow "ice pool" which existed for along period of time so that, as more snow became entrapped andfroze in the sunken sidewalk squares, an artificial and unnaturalaccumulation of ice resulted.

Defendant filed an answer denying plaintiff's allegations andargued the following affirmative defenses: (1) plaintiff failed tokeep a proper lookout as he walked on the sidewalk; and (2)plaintiff failed to take an alternative route to his destination. Defendant also argued that it was immune from liability by virtueof its lack of constructive or actual notice pursuant to section 3-102 of the Local Governmental and Governmental Employee TortImmunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 1998)). Defendant further argued that it was immune from liability byvirtue of the fact that the condition was a natural accumulation ofsnow and/or ice. 745 ILCS 10/3-105(a) (West 1998). Defendant alsoasserted that it owed no duty to plaintiff because the conditioncomplained of was open and obvious to plaintiff.

During plaintiff's deposition, plaintiff testified that he didnot look down in front of him before the fall and that he did notnotice the ice on the ground until after he fell. Plaintiff didnot know how long the ice had been present before the fall and hadno knowledge of whether defendant had received any complaintsregarding the condition of the sidewalk.

Lou Siegel, plaintiff's father, was also deposed. Siegeltestified that he photographed the area where plaintiff fell theday after the accident occurred. Siegel also testified that he didnot notice the pooling of water in the area where plaintiff fell. Since the accident, Siegel had not spoken with any witnesses whowere aware that there was any condition in the area where plaintifffell which involved ice or the pooling of water, nor was Siegelaware of any prior accidents in this area involving people trippingor slipping.

Richard Hansen, engineer for the Village of Wilmette, testified that defendant owns approximately 167 miles of sidewalkand each mile has approximately 1,056 slabs of concrete. Thesidewalk slabs can rise and settle, thereby causing cracks andelevation deviations between the slabs. Hansen inspected thesidewalk where plaintiff fell and testified that he noticed theheight differential depicted in the photograph he was shown. Hansen also testified that based on the photographs, it looked asthough the sidewalk had a drainage problem. It is a buildup of theparkway that prevents drainage off the sidewalk. This happens indeveloped areas over time where lawn clippings and leaves build upand raise the lawn surface. According to Hansen, this defect couldhave existed anywhere between 9 months and 20 years before theaccident.

Hansen testified that defendant budgeted $95,000 per year forsidewalk replacement work between the years of 1993 and 1998. Hansen also testified that defendant uses a vertical displacementof more than an inch and then uses an inch and a half as anindication that some maintenance is required. In April 1995,defendant undertook a village-wide survey, the objective of whichwas to identify sidewalks in need of repair. The sidewalk whereplaintiff fell was not identified in the survey as in need ofrepair.

According to Hansen's testimony, cracks could be formedbecause of the nature of concrete and external sources such as theground around the sidewalk. While 75% of the budget formaintenance and repair of sidewalks goes toward sidewalk verticaldisplacement, the rest is for cracked or missing pieces ofsidewalks. Hansen testified that because the budget is limited,defendant attempts to budget money to replace only hazardous walks.Drainage problems on sidewalks are not considered a main hazard.

William Dzialo, employed by the village as an engineeringinspector, testified that he inspected the sidewalk where plaintiffslipped. He measured a one-inch rise that extends about a foot anda half from the parkway and then goes back to the grade with theremainder of the sidewalk. Dzialo also testified that it looked asthough the sidewalk was pitched north towards the homeowner's lot. According to Dzialo, defendant does not distinguish between tripand slip hazards. The deviation between the heights of twoadjacent slabs of sidewalk must be more than 1