Wednesday, December 18th, 2013

Use Caution This Winter: Tort Immunity and Trip and Fall Cases

A recent decision from the Illinois Appellate Court found that local governments are immune from liability for trip and fall cases under the Tort Immunity Act as long as timely notice of the specific defect is not provided to the unit of government.

In Zameer v. City of Chicago the plaintiff filed a lawsuit against the City of Chicago (the “City”) alleging that she tripped and fell on a city sidewalk. The plaintiff attributed her fall to the difference in height between two sidewalk slabs. As a result of her fall, the plaintiff broke her wrist and sustained cuts and bruises to her face, hands and knees.

The City argued that it was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (the “Act”)[1] because it did not have timely notice of the specific defect that caused the plaintiff’s injuries. The Court agreed with the City. The Court stated that in order to circumvent the Act, the defendant must prove that the plaintiff “had timely notice of the specific defect that caused the plaintiff’s injuries, not merely the condition of the [general] area.” There was no evidence that anyone informed the City specifically of the raised sidewalk prior to plaintiff’s accident.

Practice Point: When a local public entity has notice of a specific defect (e.g., the exact location of the defect or hazard is provided, such as when a photo of the defect/hazard is provided or a phone call is received indicating the exact location) that defect or hazard needs to be corrected immediately, or at least blocked off with appropriate signage until correction can be made. Also, local governments can still be liable if they have “constructive notice” of a dangerous condition. Constructive notice is where a defective condition exists for such a length of time that public authorities, by the exercise of reasonable care and diligence, should have discovered the condition. The outcome of the Zameer case might have been different if the plaintiff argued that the height differential in the sidewalk was such that the City should have noticed it prior to her accident.

[1] The Tort Immunity Act provides that a local public entity “shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such 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.”


 

Jonathan M. Feinstein

Author: Jonathan M. Feinstein