In Ory v. City of Naperville, 2023 IL App (3d) 220105, the court provided further insight into the requirements of actual or constructive notice in a premises liability case. In Ory, the plaintiff brought claims sounding in negligence and premises liability against the City of Naperville (the “City”) following a slip and fall on an alleged defective public sidewalk. The plaintiff alleged that the City was negligent in failing to correct a height differential in the sidewalk as it had either actual or constructive notice of the height differential. The City moved for summary judgment arguing that it had no such notice, that any defect was de minimis, and that it maintained an adequate sidewalk inspection and replacement program. The trial court’s grant of summary judgment was affirmed on appeal.
Under Illinois law, a local public entity is not liable for an injury unless it has actual or constructive notice of the existence of a condition that is not reasonably safe in a reasonably adequate time prior to an injury to have taken measures to remedy or protect against the condition. 745 ILCS 10/3-102(a). The court noted that the Tort Immunity Act required proof that the defendant was on notice of the specific defect that caused the plaintiff’s injuries and not merely the condition of the area. Actual knowledge can be established by showing (1) a municipal employee’s actual knowledge of the defect in question, or (2) a prior report of the defect to the municipality. Constructive notice is established when a condition has existed for a length of time or was so conspicuous, that authorities exercising reasonable care or diligence might have known of it. If a plaintiff presents no evidence of how long a defect lasted before her injury, the burden of showing constructive notice has not been met. A public entity may defeat a claim of constructive notice by showing (1) the allegedly defective condition would have been discovered by an inspection system that was reasonably adequate, or (2) the public entity maintained and operated an inspection system with due care and did not discover the condition. 745 ILCS 10/3-102(b). The City argued that it maintained a reasonable inspection system and raised a second motion that the alleged defect was de minimis. The court, however, did not need to address these arguments as it held the plaintiff had failed to show actual or constructive notice.
Local public entities should be mindful of the shield provided by the Tort Immunity Act when defending premises liability lawsuits. Moreover, local public entities should consider their policy for review of reports of dangerous conditions. As noted in the Ory case, the presence of such a system can serve as an additional arrow in a local public entity’s quiver to defeat a premises liability claim.
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