Nguyen v. Lam
90 N.E.3d 550
Ill. App. Ct.2018Background
- Plaintiff (Nguyen) fell through a backyard catch-basin lid on defendants’ (Nhutam and Hung Lam) residential property in August 2014 and suffered a vulvar hematoma requiring surgery.
- Photos taken immediately after the incident showed a rusted, corroded metal lid and deteriorated, cracked concrete surrounding the catch basin; photos of the lid removed showed substantial corrosion of the lid and concrete lip.
- Defendants owned and maintained the property from 1989 to 2010; they had the catch-basin well cleaned in 1992 but otherwise performed no inspections or repairs of the basin or lid for roughly 22 years.
- Mr. Lam testified he walked over and stood on the lid, inspected and maintained the backyard generally, but never inspected the catch basin after 1992 and was not told of any loose lid before the accident.
- After the injury, defendants temporarily covered the basin and two months later had the lip repaired and the lid replaced; plaintiff sued for negligence, alleging defendants had constructive notice of the dangerous condition.
- The circuit court struck plaintiff’s videotape for lack of authentication and granted summary judgment for defendants, concluding plaintiff lacked expert evidence proving how long the defect existed; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on constructive notice | Photographs of heavy rust/corrosion and cracks plus Mr. Lam’s admission he didn’t inspect the basin for 22 years create a factual dispute that the defect existed long enough for constructive notice | No evidence of how long the specific dangerous defect existed; plaintiff needed expert proof of duration; photographs alone are insufficient | Reversed: factual dispute exists — jury could infer long-standing deterioration and constructive notice |
| Whether expert testimony on defect duration was required | Not required; lay jurors can infer gradual deterioration from photos and ordinary experience | Required to prove how long the defect existed | Court: Expert testimony not required at summary judgment; lay inference permissible |
| Whether Zameer compels summary judgment here | Photos and testimony here show gradual corrosion typical of long-term deterioration, unlike Zameer’s short-term slab displacement | Relied on Zameer to argue photographs insufficient absent evidence of duration | Court: Zameer distinguished — corrosion suggests gradual development and defendant’s 22-year noninspection supports inference |
| Admissibility of plaintiff’s video evidence | Plaintiff attempted to submit a videotape showing the condition | Defendant moved to strike for lack of authentication/foundation | Circuit court struck the video; appellate decision turned on photographs and testimony, not the video |
Key Cases Cited
- Baker v. Granite City, 311 Ill. App. 586 (1941) (jury may infer rust and corrosion develop over time and support constructive notice)
- Seitz-Partridge v. Loyola University of Chicago, 409 Ill. App. 3d 76 (2011) (summary judgment reviewed de novo)
- Thompson v. Gordon, 241 Ill. 2d 428 (2011) (plaintiff need not prove case at summary judgment; court may not weigh evidence)
- Chapman v. Foggy, 59 Ill. App. 3d 552 (1978) (landowner duty to discover and remedy dangerous conditions; constructive notice concept)
- Pittman v. City of Chicago, 38 Ill. App. 3d 1036 (1976) (photograph and testimony can support jury inference about defect duration)
- Guenther v. Hawthorn Mellody, Inc., 27 Ill. App. 3d 214 (1975) (existence of defect for sufficient time to impute notice is for the trier of fact)