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DETERIORATING CONDITION IS ENOUGH TO CREATE GENUINE ISSUE OF MATERIAL FACT REGARDING CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION

The Illinois Appellate Court for the First District recently ruled in favor of victims injured due to defective property conditions. In Nguyen v. Lam, the Illinois Appellate Court found that the Plaintiff presented enough evidence to create a genuine issue of material fact regarding the Defendants' constructive knowledge of the dangerous condition on their property where the testimony and photographs of the rusty catch basin lid and deteriorated surrounding concrete showed those conditions had existed for a sufficient length of time. The Court also rejected the argument by the Defense that Plaintiff needed to present an expert to testify about the duration of the defect.

In Nguyen, Defendants purchased a two-story residential building in 1989. They maintained the backyard of the property and allowed their tenants to use the backyard that contained a catch basis with a metal lid. The previous owner informed Defendant, Mr. Lam, to check the catch basin to make sure that sewage did not clog it. Mr. Lam never checked the catch basin. Aside from hiring professional cleaners to clean the well of the catch basin in 1992, the Defendants never performed any other maintenance or repairs or the catch basin. Mr. Lam regularly inspected, cleaned and swept the backyard, repaired anything that was broken, cut the grass and shoveled the snow. He walked over the catch basin, had seen others walk across it, and never noticed any problems with the catch basin.

In the evening of August of 2014, Plaintiff was carrying groceries from her car when she stepped on the lid of the catch basin. The lid flipped to a vertical position and caused her to fall into the well. She suffered an injury to her groin as a result. Photographs of the catch basin were taken immediately after the fall. The photographs depicted a rusted, worn and deteriorated lid and a deteriorated and cracked concrete surface surrounding the catch basin. Plaintiff filed a negligence complaint in Cook County.

Defendants moved for summary judgment and asserted that none of the evidence gave rise to an inference that they had actual or constructive notice of the dangerous condition. The circuit court agreed and granted Defendants' motion for summary judgment. It asserted that Plaintiff did not present expert testimony regarding the duration of the defect and photographs of general defects were not sufficient to impute notice to the Defendants without evidence of the specific defect.

The Illinois Appellate Court for the First District reversed the circuit court's ruling. The Court declared that 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. Namely, Mr. Lam testified that he regularly inspected the backyard and he was aware of the catch basin but had never inspected or maintained the catch basis other than in 1992. Also, the photographs showed that some deterioration of the catch basin was visible and the cracked and corroded concrete around the rusty catch basin indicated that the catch basin's defective condition existed for a considerable amount of time because concrete and metal deteriorate gradually.

After construing the documents, testimony and photographs strictly against the Defendants and in the light most favorable to the Plaintiff, the Court found that a genuine issue of material fact existed concerning whether the Defendants had constructive notice of the dangerous condition. A reasonable trier of fact could find that the rusty lid and the corroded cracked concrete surrounding surface existed for a sufficient period of time to give constructive notice to Defendants who should have discovered the defect by exercising reasonable care. The Court also rejected the Defendants argument that Plaintiffs needed to present expert testimony concerning the duration of the defect. A trier of fact could have discerned the age and duration of the catch basin as having been in existence for a very long time without the need of expert testimony.

The Illinois Appellate Court's ruling is a huge victory for victims injured due to defective property conditions. No longer may landlords escape responsibility when they allow their properties to deteriorate to the detriment of their tenants. At the Law Offices of Mathys & Schneid, we ensure that landlords are held accountable when their tenants are injured by defective conditions on their properties.

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