In Illinois, in the event an unsafe condition exists or develops on public property, under the Illinois Tort Immunity Act a public body is generally immune from liability for injuries sustained due to such an unsafe condition. Such immunity applies unless the public body knew or should have known of a condition that is not reasonably safe prior to an injury in order to have taken measures to remedy or protect against such condition.  In the recent case of Heath v City of Naperville,  a plaintiff sued the City after she tripped and fell on an uneven sidewalk, suffering injuries.  While the City did not have any actual knowledge of the sidewalk defect, the plaintiff alleged the City should have known of the sidewalk’s unsafe condition. The Illinois Appellate Court in that matter concluded that a factor in determining whether the City was immune or “should have known about” an unsafe condition is whether or not the public body took steps to develop an adequate plan for the ongoing inspection of its public premises.  Section 3-102(b) of the Tort Immunity Act places the burden of proof as to the reasonableness of an inspection system on the public body. Whether the public body maintains and operates a reasonably adequate inspection system, thus proving a lack of “constructive” notice of a dangerous condition, is generally a question of fact.   The Heath Court held that the mere existence of an inspection system did not satisfy the standard required by Section 3-102(b) of the Act, i.e. that there was a genuine issue of material fact whether the inspection system established and operated by the City was reasonably adequate given the number of staff and the resources the City in that matter devoted to its inspection activities.  See Heath v City of Naperville, 2024 Ill. App. 3d 230663 (Ill. App. Ct. 2024)

The full case decision is available at:

Heath v City of Naperville, 2024 Ill. App. 3d 230663 (Ill. App. Ct. 2024)

https://casetext.com/case/heath-v-city-of-naperville

A more detailed summary of the case is set forth hereafter.

Case Summary

Heath v City of Naperville, 2024 Ill. App. 3d 230663 (Ill. App. Ct. 2024)

Facts

Plaintiff in this matter tripped on an uneven portion of a City sidewalk and was injured.  Plaintiff sued the City alleging the City knew or should have known of the sidewalk’s unsafe condition and violated its duty to maintain its sidewalk in a reasonably safe condition by failing to:

• properly maintain the sidewalk so that it became a hazard
• mark or warn the public of the hazard
• create a proper inspection system to identify City property that is in an unreasonably unsafe condition.

While Plaintiff could not prove the City actually knew about the unsafe condition, the Court focused on the City’s assertion that it had established a proper inspection system to identify hazards on the public sidewalks and was therefore immune from liability under the Tort Immunity Act (the “Act”).

The Court noted that under Section 3-102(a) of the Act (745 ILCS 10/3-102(a)) a plaintiff is required to prove that the City had “actual or constructive notice of the existence of 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 City however claimed that the Plaintiff failed to establish the City had actual or constructive notice of the sidewalk defect (745 ILCS 10/3-102(a)) and that the City maintained its sidewalks with due care through a reasonably adequate inspection system (that did not result in discovery of the sidewalk defect).

Constructive notice to the City of an unsafe condition may be established if the condition has existed for such a length of time, or was so conspicuous or plainly visible, that authorities exercising reasonable care likely would have known of it. 

A Reasonably Adequate Inspection System May Prove a Lack of Constructive Notice

As for the City’s claim, the Court noted that the City could establish its lack of constructive notice if it could prove:

• “The existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequate considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for the uses that the public entity actually knew others were making of the public property or adjacent property”; or
• The City maintained and operated such an inspection system with due care and did not discover the condition.” 745 ILCS 10/3-102(b).

The City argued that it lacked constructive notice as a matter of law because it maintained and operated an inspection system with due care that was reasonably adequate considering the practicability and cost of inspection, weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise.  Section 3-102(b) of the Tort Immunity Act places the burden of proof as to the reasonableness of an inspection system on the governmental entity. The Court stated that whether the City maintains and operates a reasonably adequate inspection system, thus proving a lack of constructive notice, is generally a question of fact.

The testimony of the City engineer, who leads the program, was that the sidewalk repair and replacement program is “not systematic.”  The Court emphasized that whether a municipality maintains and operates a reasonably adequate inspection system, thus proving a lack of constructive notice, is generally a question of fact. The City’s inspection system for 900 miles of sidewalk involved five inspectors who relied on citizen complaints and street resurfacing that occurs every 15 to 20 years to identify potentially dangerous conditions. On those facts, the Court was unable to conclude, as  a matter of law, that this system is reasonably adequate under the circumstances and leave this question to the finder of fact.

Mere Existence of An Inspection System Not Necessarily Adequate

The Court held that the mere existence of an inspection system did not satisfy the standard required by Section 3-102(b) of the Act, i.e.  that there was a genuine issue of material fact whether the inspection system established and operated by the City was reasonably adequate under the circumstances. While the City could show it had a sidewalk repair and replacement program intended to discover and remedy dangerous sidewalk conditions, the “reasonableness” of the system was subject to scrutiny in determining whether immunity applies.   The City’s inspection system functioned by relying on requests or complaints from the public.  Following the receipt of a request or complaint,  a City inspector would then visually inspect the sidewalk and determine whether further investigation and/or repair/replacement is warranted. If repair or replacement was recommended, the City contended it then took quick action to temporarily and then permanently repair the unsafe condition.

The Appellate Court reversed the judgment of the circuit court granting the City’s motion for summary judgment based on its claim of immunity and remanded for further proceedings to address the questions of fact surrounding the terms and functioning of the City’s inspection system.

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