by W. Anthony Andrews (Fall 2016)
The Americans with Disabilities Act requires municipalities to build and improve sidewalks near intersections using certain materials. These specialized surfaces, which differ from concrete sidewalks in color and texture, warn visually impaired pedestrians about the upcoming road. Defects in those surfaces, however, expose municipalities to the same liability as any other public walkway, as was recently confirmed in Burns v. City of Chicago, 2016 IL App (1st) 151925.
The City of Chicago installs ADA-compliant sensory tiles in nearly 3,000 locations each year. One of those intersections is North Parkside Avenue and West North Avenue, where Lloyd Burns was walking in the rain on August 15, 2012. Burns tripped on the tiles, which were not level with the sidewalk. Photographs showed the tiles were raised between 3/4 and 1 1/2 inches.
Burns filed suit against the City alleging negligent installation of the sensory tiles, along with failure to inspect and repair them. The City motioned for summary judgment, arguing that the defective tiling was a de minimis condition, of which the City had no knowledge, and that it was an open and obvious danger to pedestrians. The trial court granted summary judgment in favor of the City.
Burns also alleged that the City failed to warn him of the danger. The trial court dismissed that claim because the City could not be liable for failing to put up warning signs, under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-104). Burns appealed all these rulings, but the appellate court affirmed the lower court’s decisions.
On appeal, the plaintiff’s first argument was that the trial court erred by applying the de minimis rule to the sidewalk defect. As applied by Illinois courts for decades, the de minimis rule means that property owners are not liable for minor defects found in frequently traversed areas. (Arvidson v. City of Elmhurst, 11 Ill.2d 601, 604 (1957)) If a reasonably prudent person would not expect pedestrians to have a problem with the defect, then it is de minimis.
While there is no hard-and-fast rule, courts have said sidewalk defects of less than two inches are often de minimis. (Birck v. City of Quincy, 241 Ill.App.3d 119, 122 (4th Dist. 1993)) In Burns, the tiles were no more than 1-1/2 inches above the sidewalk. Because that defect likely would not be significant enough on its own, Burns argued there were aggravating circumstances, such as the tiles and sidewalk being composed of different materials and there being a slight incline. He attempted to say these factors made the relatively small defect more pronounced.
The court rejected these arguments, though, saying a reasonably prudent person still would not have foreseen problems. Sidewalks often have inclines to help with wheelchairs and other devices. Additionally, the ADA specifically sanctions tiles not made of concrete, because the difference in material helps alert visually-impaired people. The lack of aggravating circumstances or a significant defect meant the raised tiles were a de minimis condition.
Next, Burns argued the trial court made a mistake dismissing his claim regarding the City’s failure to warn him of the raised tiles. Although the Tort Immunity Act establishes that a municipality is not liable for failing to provide warnings, Burns attempted to persuade the appellate court that the City is still liable because it either installed or maintained a traffic control device in an unsafe manner, which would require a warning. The court refused to accept this interpretation, saying instead that the tiles did “not create a greater hazard then what the tiles were designed to protect against.”
Burns also challenged the trial court’s application of the Tort Immunity Act regarding notice. The Act prevents local governments and their employees from being sued for defective conditions unless they had actual or constructive notice about an unsafe condition with enough time to fix it. (Ramirez v. City of Chicago, 318 Ill.App.3d 18, 22 (1st Dist. 2000)) While Burns accepted that the City did not actually know about the defect, he argued the City should have known constructively. Specifically, Burns argued that a jury could infer that the tiles had been raised for long enough to prove the City had constructive notice, so the lower court should not have granted summary judgment.
However, the appellate court determined that Burns did not meet his burden for showing how long the tiles were raised. The tiles were installed in January 2010, and a Google Maps photograph showed that the tiles were still level with the sidewalk as of July 2011. Burns testified that he walked the intersection each week and never noticed a problem. Additionally, an employee of the City’s transportation department testified that the problem probably was caused by a third party, such as a heavy truck driving over it, without the City knowing. There was not enough evidence to show how long the tiles had been defective; therefore Burns could not prove the City had constructive notice.
Burn’s last argument connects to the notice finding. If the defect was not noticeable for the City, then it also was not an open and obvious danger to pedestrians, Burns contended. The trial court’s summary judgment ruling was based partly on the open and obvious rule, which precludes liability when an injury is caused by a dangerous condition that could have been seen. (Rexroad v. City of Springfield, 207 Ill.2d 33, 44 (2003)) The plaintiff argued that if the unlevel tiles were not obvious enough to provide notice, then they also were not obvious enough to warn people walking.
The appellate court rejected this argument as well. The tiles were specifically designed to create sensory cues for visually impaired individuals, which meant pedestrians should have been acutely aware of discrepancies in the height of the surfaces. According to the court, “a reasonable person, in the same position as Burns, exercising ordinary perception, intelligence, and judgment, would recognize the tiles and ramp incline” when approaching the intersection.
Although municipalities must install special sidewalk surfaces to protect the visually impaired, that responsibility does not increase their exposure of liability. The standard does not change due to the involvement of the ADA. Municipalities are still precluded from being responsible for injuries on their property if defects are de minimis, if there was no notice, and if the danger was open and obvious.