Find Legal Information

No. 2--02--0722

JUSTICE GROMETER delivered the opinion of the court:

Plaintiffs, Albert P. Putman and Ardelle J. Putman, institutedan action in the circuit court of Du Page County following a fallthat rendered Albert a quadriplegic. Plaintiffs named asdefendants, among others, the Village of Bensenville (Bensenvilleor the Village), Eagle Concrete Contractors, Inc. (Eagle), andJames J. Benes & Associates, Inc. (Benes). Eagle was asubcontractor hired on a road improvement project in Bensenville,and Benes was the engineering firm hired by the Village for theproject. A number of other defendants settled or were grantedsummary judgment and are not parties to this appeal. Defendantsmoved for summary judgment. The trial court granted defendants'motions, and plaintiffs now appeal. For the reasons that follow,we affirm in part, reverse in part, and remand the cause.

I. BACKGROUND

On November 9, 1995, Albert was to attend a meeting at theVeterans of Foreign Wars (VFW) building in Bensenville. Themeeting was to commence at 8 p.m. He arrived about 7:30 and parkedin a lot across the street. As he approached the intersection tocross the street, he noted that the pedestrian crosswalk andtraffic signals were working, but the overhead lighting at theintersection was not. Albert stated that the intersection was darkand shadowy. Albert pressed the pedestrian signal button andwaited until the walk signal came on before crossing theintersection. When he was about halfway across the intersection,the signal changed to "don't walk." Albert related that heincreased his pace "a trifle," but "didn't hurry that much." Albert acknowledged that he was familiar with the intersection dueto the number of times he had previously traversed it, which heestimated at approximately 30. Albert stated that the signalappeared to be quicker than usual on the night of the accident. Infact, the signal had been damaged about three weeks earlier, and atemporary controller had been installed. This controller wouldgive a pedestrian the walk signal for between 3 and 8 seconds andthen allow an additional 15 seconds to cross the intersection.

On the VFW side of the intersection, Bensenville had installeda ramp to make the sidewalk handicapped accessible. The rampconsisted of a sloped portion of the sidewalk that came down tomeet the road. There was a gutter at the base of the ramp. AsAlbert was leaving the roadway, he tripped on the front edge of theramp where it adjoined the gutter. He fell forward and struck hishead on a concrete parking block. As a result, he was paralyzedfrom the neck down. The record in this case is voluminous, andadditional facts will be discussed as they pertain to the issuesraised by plaintiffs.

Before proceeding to the merits of this appeal, we note thatboth Benes and Eagle have filed motions to strike portions ofplaintiffs' brief. We ordered these motions taken with the case. The whole of Eagle's motion and a portion of Benes's are based onplaintiffs' failure to cite authority in support of some of theirarguments, in contravention of Supreme Court Rule 341(e)(7)(Official Reports Advance Sheet No. 21 (October 17, 2001), R.341(e)(7) (eff. October 1, 2001)). It is well established thatpoints not supported by authority may be deemed waived. Groeningsv. City of St. Charles, 215 Ill. App. 3d 295, 306 (1991). However,this principle is "an admonition to the parties and not alimitation upon the power of a reviewing court to address issues oflaw as the case may require." Mayfield v. ACME Barrel Co., 258Ill. App. 3d 32, 37 (1994). Hence, we deny these motions and willapply the doctrine as we see fit in addressing the merits of thisappeal. Benes also requests that a portion of plaintiffs' brief bestricken because it pertains to an order not mentioned inplaintiffs' notice of appeal (see 155 Ill. 2d R. 303(b)(2)). However, plaintiffs have voluntarily withdrawn this issue,rendering that portion of Benes's motion moot.

We also note that, except for Benes, all parties at times, andplaintiffs persistently, fail to comply with Supreme Court Rules 6and 341(d) (145 Ill. 2d R. 6; Official Reports Advance Sheet No. 21(October 17, 2001), R. 341(d) (eff. October 1, 2001)). These rulesmandate that "c]itations of cases must be by title, to the page ofthe volume where the case begins, and to the pages upon which thepertinent matter appears in at least one of the reporters cited." (Emphasis added.) 145 Ill. 2d R. 6. The failure to abide by theserules is also sufficient to result in the waiver of an argument. See Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 927-28 (1992). We advise all appellate counsel to pay close attentionto these rules in the future.

II. ANALYSIS

The trial court granted summary judgment in favor of all threedefendants. As the issues pertaining to the separate defendantsare discrete, we will address them separately. Because this causecomes to us following a grant of summary judgment, review is denovo. Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000). Summaryjudgment is appropriate only where no genuine issues of materialfact exist and the movant is entitled to judgment as a matter oflaw. Stewart v. Jones, 318 Ill. App. 3d 552, 557-58 (2001). Therecord must be construed liberally in favor of the party opposingthe motion. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753(1999). We will now turn to the merits of this appeal.

A. Bensenville

Among the grounds relied on by the trial court in grantingBensenville's motion for summary judgment was that any defect inthe ramp was de minimis and thus could not support liability on theVillage's behalf. As we find this issue dispositive, we need notaddress the alternate bases articulated by the trial court insupport of its decision. The rule that a village has no duty torepair de minimis defects in its sidewalks is well established inthis state. See Gillock v. City of Springfield, 268 Ill. App. 3d455, 457 (1994); Hartung v. Maple Investment & Development Corp.,243 Ill. App. 3d 811, 815 (1993); Birck v. City of Quincy, 241 Ill.App. 3d 119, 121, 124-25 (1993); Arvidson v. City of Elmhurst, 11Ill. 2d 601, 604 (1957); Walter v. City of Rockford, 332 Ill. App.243, 246, 251 (1947). This rule stems largely from the recognitionthat placing such a duty on a municipality would create anintolerable economic burden. See Gillock, 268 Ill. App. 3d at 457-58 ("The economic burden would be too great to requiremunicipalities to repair every slight defect existing in the milesof sidewalk they maintain"); Birck, 241 Ill. App. 3d at 123. Quitesimply, a municipality does not have a duty to keep a sidewalk inperfect condition at all times. Hartung, 243 Ill. App. 3d at 814. Because the existence of a duty is a question of law, it is anissue that properly can be resolved in a motion for summaryjudgment. Ralls v. Village of Glendale Heights, 233 Ill. App. 3d147, 154 (1992); see also Bledsoe v. Dredge, 288 Ill. App. 3d 1021,1023 (1997) (holding that the de minimis rule renders minor defectsin a sidewalk not actionable as a matter of law).

In the instant case, the evidence, viewed in the light mostfavorable to plaintiffs, shows that there was a one-inch lipbetween the ramp and the gutter. Plaintiffs' expert, Paul Box,produced a diagram showing this change in elevation. The upperhalf of the inch reflected the distance where the ramp slopeddownward, and only the lower half was perpendicular to the gutter. Defendants produced testimony indicating that the lip was smaller;however, as this appeal involves a summary judgment, we must acceptthe testimony of plaintiffs' expert. We also note that Albertestimated the distance from the lowest point in the gutter to theramp at two to three inches. This measurement is not relevant, asAlbert asserts that he tripped on the front edge of the ramp. Moreover, it is not surprising that, to allow for drainage, thelowest point of the gutter was somewhat lower than the ramp.

Thus, for the purpose of resolving this issue, we will assumethat a one-inch lip existed at the front edge of the ramp. Numerous cases have held that such defects fall within the deminimis rule. See, e.g., Birck, 241 Ill. App. 3d at 121 (defect of1 7/8 inches); Warner v. City of Chicago, 72 Ill. 2d 100, 104(1978) ("Turning to the facts in the case before us, we believethat the city's evidence, a 1 1/8-inch-maximum height variation,would indicate that, in view of the surrounding circumstances, nocause of action would lie due to the minimal nature of thedefect"); Walter, 332 Ill. App. at 246 (one-inch defect). In fact,the Fourth District has noted that, generally, the point at whichliability attaches in such cases is when the defect approaches twoinches. Birck, 241 Ill. App. 3d at 122. The evidence, viewed inplaintiffs' favor, indicates a defect of one inch. Such a defectlies within the ambit of the de minimis rule and is not actionable.

Plaintiffs do not seriously attempt to argue that the one-inchdefect would not fall within the de minimis rule. Instead, theyattempt to argue that the rule has no application to the case atbar. To this end, they advance two arguments. First, they arguethat the ramp was a special, statutorily mandated handicapped ramp,rather than a portion of the ordinary sidewalk. Second, theycontend that certain regulations that state how such ramps shouldbe constructed should control this action and trump the de minimisrule. We find both arguments unpersuasive.

First, we attach no significance to the fact that Alberttripped on the ramp rather than on some other portion of thesidewalk. Plaintiffs attempt to distinguish the ramp from thebalance of the sidewalk by pointing out that the design of suchramps is set forth in detail in certain administrative regulations. See 71 Ill. Adm. Code