Appellate court: Slow deterioration of catch basin sufficient notice of danger; dismissal of suit improper

By DM Herra | Nov 10, 2017

A Cook County judge was too quick to grant summary judgment in a case in which a woman was injured by a fall into a dilapidated backyard catch basin, a state appellate panel has ruled.

According to court documents, plaintiff Linh Phung Hoang Nguyen was injured in August 2014 while walking across the backyard of a property on West Winnemac Avenue in Chicago. Nguyen and her boyfriend were walking across the yard from a parking area to his parents’ apartment on the property. Nguyen said when she stepped on the iron lid of the catch basin it flipped on its side. One foot fell into the well of the basin while the other stayed on the ground causing her to straddle the lid and resulting in a groin injury that later required surgery.

Photographs of the basin show the lid was rusted and its edges worn, according to the court. The concrete surface surrounding the lid is also cracked and worn and photos of the lip where the lid rests show both the metal lid and concrete surface are corroded. Nguyen sued the property owners, Nhutam and Hung Lam, for negligence.

In moving for summary judgment, the Lams argued there was no evidence they had actual or constructive notice of the dangerous condition of the catch basin. Cook County Circuit Judge Eileen M. Brewer granted the motion in 2016, noting the plaintiff had provided no expert testimony about how long the basin may have been dangerous. Brewer has since retired from the bench.

A three-justice panel of the Illinois First District Appellate Court, however, rejected that rationale, noting plaintiffs are not required to prove their case at the summary judgment stage, and that even a layperson looking at photos of the catch basin’s condition could tell it had likely been deteriorating for some time.

Justice Bertina E. Lampkin, writing the opinion of the court in Chicago, noted that summary judgment “is a drastic means of disposing of litigation [and] should be denied” if there is any dispute as to the facts of the case. Whether the basin had been a danger long enough for the Lams to have learned about its condition is a question that should be decided at trial, she said.

“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,” Lampkin wrote in the court’s analysis. “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. …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.”

Court documents note that the last time the Lams had any maintenance performed on the catch basin was in 1992, when they had it cleaned. Between that cleaning and when the Lams moved out of the property in 2010, they regularly inspected and maintained the backyard, including walking on and standing on the catch basin, but never inspected or maintained it. The appellate court held that it is for a trier of fact to determine whether the Lams should have been aware of the slow deterioration of the catch basin over the 22 years between its last maintenance and Nguyen’s injury.

The court reversed the decision, and remanded it to Cook County court for further proceedings.

The plaintiff is represented by the Staver Law Group PC, of Chicago.

Defendants are represented by the firm of Bruce Farrel Dorn & Associates, of Chicago.

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