Barr v. Frausto
65 N.E.3d 915
| Ill. App. Ct. | 2016Background
- Kevin Barr tripped in a small hole on a grass parkway owned by the City of Joliet while walking in July 2012 and suffered knee/leg injuries.
- Barr sued the homeowner (Frausto) and the City for negligent property maintenance; summary judgment was granted for Frausto and later for the City.
- The City conceded no actual notice; the dispute centered on constructive notice and whether the hole was an unreasonably dangerous condition.
- Evidence: Barr’s deposition (walked route weekly but never saw the hole; did not see the hole at time of accident), homeowner and her boyfriend testified they did not know of the hole, City official testified parkways are owned by City but maintained by homeowners and City had no records of work there.
- Barr’s expert (surveying/architecture) inspected the site and opined the hole was conspicuous, caused by a decayed tree stump, aligned with other holes, and had existed at least three years.
- Trial court granted the City’s summary judgment, finding Barr failed to show actual or constructive notice; Barr appealed only the City’s dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive notice under 745 ILCS 10/3-102(a) | Expert affidavit showed hole was conspicuous and existed ≥3 years, creating a factual dispute on constructive notice | Hole was small (rabbit/snake-sized), unseen by long-time residents who maintained the parkway; imposing inspection duty would be unreasonable | Court: No genuine issue—Barr’s own testimony that he and residents never noticed the hole defeats constructive-notice claim; summary judgment for City affirmed |
| Whether hole was an unreasonably unsafe condition | Expert opined hole was unreasonably dangerous | City argued such minor, natural parkway irregularities are customary and not actionable | Court: Did not reach this issue after resolving constructive notice in City’s favor |
Key Cases Cited
- Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32 (summary-judgment standard and de novo review)
- Marshall v. City of Centralia, 143 Ill. 2d 1 (municipal duty to maintain parkways for limited pedestrian use)
- Burke v. Grillo, 227 Ill. App. 3d 9 (burden to prove actual or constructive notice under the Tort Immunity Act)
- Livings v. City of Chicago, 26 Ill. App. 3d 850 (constructive notice may be decided as matter of law when only one inference is reasonable)
- Mtengule v. City of Chicago, 257 Ill. App. 3d 323 (factors for constructive notice: length of existence and conspicuity)
- Finley v. Mercer County, 172 Ill. App. 3d 30 (plaintiff’s own testimony that defect was not apparent can defeat constructive-notice claim)
- Pinto v. DeMunnick, 168 Ill. App. 3d 771 (municipality not required to inspect parkway lawns for small defects absent notice)