Opinion
4-23-0210
11-13-2023
BRIAN SCOTT MASCHKE, Plaintiff-Appellee, v. THE CITY OF ROCKFORD, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County No. 22SC1347 Honorable Gwyn Gulley, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Presiding Justice DeArmond and Justice Lannerd concurred in the judgment.
ORDER
TURNER JUSTICE.
¶ 1 Held: The appellate court affirmed, concluding the trial court's findings in favor of plaintiff were not against the manifest weight of the evidence where (1) plaintiff established the City had actual notice of a defect in a tree that caused damage to plaintiff's truck, (2) the court's finding the City was not immune from liability based on weather conditions was proper, and (3) the City forfeited an argument it was entitled to discretionary immunity.
¶ 2 In June 2022, plaintiff, Brian Scott Maschke, filed a pro se small claims complaint against defendant, the City of Rockford (City), seeking damages in connection with a City-owned tree that caused damages when a limb fell on Maschke's truck.
¶ 3 At trial, the City contended it was immune from liability under sections 3-102(a) and 3-105(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102(a), 3-105(a) (West 2022)), because (1) it did not have actual or constructive notice of a dangerous condition regarding the tree and (2) weather conditions caused the tree limb to fall. The trial court awarded Maschke damages, finding the City had actual notice when Maschke notified the City of his concerns about the tree. The court rejected the City's arguments about weather conditions.
¶ 4 On appeal, the City contends the trial court erred in failing to find it was immune from liability based on (1) the lack of actual notice of a dangerous condition in the tree, (2) damage caused by weather conditions, and (3) discretionary immunity under section 2-109 of the Act. (745 ILCS 10/2-109 (West 2022)). We determine the court's factual findings in favor of Maschke were not against the manifest weight of the evidence and the City forfeited its argument concerning section 2-109 of the Act. Accordingly, we affirm.
¶ 5 I. BACKGROUND
¶ 6 In his complaint, Maschke alleged that, on May 12, 2022, a City-owned tree limb fell on his truck, causing $3540.76 in damages. His claim for damages from the City's insurance company was denied because there was no record of recent calls for service or maintenance requests. However, Maschke alleged he contacted Taylor Hennelly with the City's forestry division in May 2019 about two trees in front of his residence. One tree was deemed dead and was removed. While Maschke was told the other tree was still good, he still had concerns about it leaning and the amount of dead branches on it. Maschke also alleged City forestry workers had been operating in the area "last year" and were made aware of his concerns, but they told Maschke it was a "good tree." Maschke alleged he made good-faith efforts to notify the City about the tree, but they did not document his requests.
¶ 7 Maschke attached a copy of an e-mail showing the City's insurer denied his claim based on a lack of notice to the City about the tree. The letter stated Maschke could appeal by filing a small-claims action. He also attached a document from an auto-body specialist showing the estimated amount for the repair of the truck. The City did not contest the amount of damages.
¶ 8 On September 27, 2022, a bench trial was held. Maschke presented an exhibit showing the City's insurer denied his claim because its investigation revealed the City had no prior notice or maintenance requests for the tree at issue. He also provided an e-mail from Cori Hilliard, Maschke's girlfriend, to Taylor Hennelly, the forestry supervisor for the City, dated April 20, 2020, stating, "I think I have another dead tree. *** I think [Maschke] was hoping it was [sic] just fall with one of the wind/rain storms onto his truck, but no such luck, but not budding at all. Looks like if it does fall it will be a mess." Hillard continued, "Anyways, I know everything is slim right now but thought when and if the removal guys are in the area." On April 28, 2020, Hennelly responded, "Just checked it out... Got done [sic] buds breaking on it... I'll keep an eye on it."
¶ 9 Maschke testified he and Hilliard contacted Hennelly about the tree in 2020. He stated he parked his truck by the tree and was concerned because it had "a lean to it." It also had some dead branches and large, concerning limbs. He and Hilliard were concerned about public safety and for vehicles parked near the tree. Maschke also stated, "and I feel that there's been some other times some verbal correspondence we've had in between now and then with different City employees about, hey, this tree needs to get looked at it needs to come down for, for safety sake." Although the letter from Hennelly advised he would follow up on the matter, between the time Maschke notified Hennelly about the tree and May 12, 2022, Maschke never heard anything further about it. Maschke told the trial court, to his knowledge, there were no storms or strong wind gusts the night the limb fell. A photo of the fallen limb shows dry pavement and there is no indication of other limbs, leaves, or storm debris surrounding the truck and the fallen limb.
¶ 10 Maschke also testified, when City workers came to remove the tree limb from his truck, he asked if they were finally going to do something about the tree, and a City employee told him "that's above my paygrade." When Maschke saw City workers doing work around the neighborhood, he informed them about the tree. Maschke submitted a Freedom of Information Act request to the City for records of his service requests or "verbal correspondence" about the tree, but the City's response indicated it did not have any such records. Maschke told the trial court, "Obviously, it's hard to prove that we've had conversations when nothing was documented." He also told the court he did not receive documentation about what kind of inspection was done on the tree. According to the City, the complaint about the tree came through an internal e-mail instead of a normal service request because Maschke's girlfriend worked for the chief of police. Thus, there was no tracking of a service request.
¶ 11 Hennelly testified he was employed as the City's forester and supervised the forestry crews in the City. Hennelly explained there were three levels of assessments for damaged trees. Level one was visual and usually done from one side of the tree. Level two involved walking around the tree and looking at the base and the canopy on all sides. Level three used tools to listen for hollow spots or probes to measure rotten spots or cracks in the tree to measure severity. He typically did a level-one or level-two inspection of trees in response to the average complaint. The record is not clear which type of inspection Hennelly actually performed on the tree at issue, but the parties generally proceeded as if he performed a level-two inspection.
¶ 12 Hennelly testified the call about the tree came in the "mid early time of the year," when the tree had not quite budded out. According to Hennelly, "all trees look dead in the winter but if we give them time, they'll break leaf and come out." After the limb fell, Hennelly reassessed the tree and referenced a "wound" where the limb came off, but he also stated, "There was still a lot of healthy dead wood or a lot of healthy wood on the tree and a lot of leafing out in the canopy." He added, "I think even today I wouldn't remove this tree whatever that's worth."
¶ 13 When shown a photograph of the limb, Hennelly stated it had a small wound at the base but also that it was "very healthy." He further explained, "there's a small wound on the base of the branch that you can see but there's good healthy response growth around that so the tree even though it had an area, a defect, it was still putting out healthy growth around that." Looking at a photograph of the tree depicting where the limb broke off, he stated, "even though there's a small bit of decay to the top side of the union there, there's still a lot of healthy wood and good branch, branch union bark or union wood-union growth, sorry, between the branch and the trunk." He explained "union growth" as follows:
"[S]o when a tree grows it puts a branch out, and it'll actually add on more layers and growth to things to better support the branch, um, it's what trees generally do is why they're harder to break away at the base. If the branch had more of an included bark where the tree didn't have that interlocking layers of fiber, and the branch and bark were growing together like this, it would be more of a cause for alarm for the limb to fall off. Included bark is something that we kind of look for when inspecting trees."
The record indicates photographs showing the wound were marked for the trial court, but the exhibits in the record do not appear to be marked. Later, the parties discussed a cavity in the tree, and Hennelly stated that was not the wound that caused the limb to fall. He then testified the wound was not the cause of the limb failure, but it is unclear whether he was referring to the cavity in the tree or the wound at the base of the limb that fell.
¶ 14 Hennelly identified an exhibit as a weather report from the date the limb fell. He testified, based on the report, "there were pockets of isolated showers and storms mainly in Rockford late afternoon or early night." The report stated, "Had a few isolated cells pop up late afternoon/early night Rockford to southern Grundy County." The maximum wind speed listed in the report was 8 to 20 miles per hour with 25-mile-per-hour gusts. Hennelly testified gusts of that strength were capable of knocking a limb off of a healthy tree.
¶ 15 Hennelly further testified a level-three inspection would have been required to discover the decay in the tree. Such an inspection would have required a bucket truck. The City had only two bucket trucks and maintained 30,000 to 40,000 trees. He stated it was not feasible to conduct a level-three inspection in response to all complaints. The City had 350 trees on a list of trees in need of trimming, and it would take about 175 days to take care of those trees.
¶ 16 On cross-examination, Maschke asked about a limb in a photograph "that's present on the tree as of today," and indicated it was near the limb that fell. When asked if that limb looked healthy, Hennelly responded "no."
¶ 17 The City argued it had statutory immunity under two provisions of the Act. First, the City argued it could not be liable without having actual notice of a dangerous condition. The City argued a level-two inspection did not show damage and it would be unduly burdensome to proactively perform level-three inspections on all of the City trees. Second, the City argued weather conditions caused the limb to fall.
¶ 18 The trial court found in favor of Maschke. In doing so, the court stated it considered the testimony and credibility of the witnesses and the evidence submitted. The court found the City had actual notice of the defect in the tree. The court noted Hennelly's testimony there was a wound on the base of the limb near where it broke. Photographs of the tree showed the wound. While there was evidence of storms and winds, Maschke testified there were no storms. The court further found, while wind gusts could knock off a healthy limb, such gusts could also remove an unhealthy limb. Accordingly, the court awarded damages to Maschke in the amount of $3540.76.
¶ 19 The City filed a motion to reconsider. In the motion, the City cited two sections of the Act. The City argued under section 3-102 of the Act (745 ILCS 10/3-102 (West 2022)), it lacked actual notice of a dangerous condition. Under section 3-105 of the Act (745 ILCS 10/3105 (West 2022)), the City argued weather conditions caused the damage. The City also took issue with the trial court's acceptance of Maschke's lay opinion about the condition of the limb as opposed to Hennelly's expert opinion.
¶ 20 At the hearing on the motion, the trial court noted the City did not raise at trial issues concerning certification of Hennelly as an expert or Maschke's testimony as a layperson. In particular, the City did not object to Maschke's testimony. Thus, the court found those issues forfeited. The court also found, regardless of those issues, it still had to weigh the credibility of the witnesses and the weight to give to expert testimony. The court noted Hennelly admitted there was a defect in the tree and said he would keep an eye on it, but he did not follow up. The court repeated it considered the credibility of the witnesses and the evidence presented and indicated it previously found the City had actual notice of the condition based on those factors. Accordingly, the court denied the motion to reconsider.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 On appeal, the City contends the trial court erred in failing to find it was immune from liability based on (1) the lack of actual notice of a dangerous condition regarding the tree, (2) damage caused by weather, and (3) discretionary immunity under section 2-109 of the Act (745 ILCS 10/2-109 (West 2022)).
¶ 24 A. Lack of an Appellee's Brief
¶ 25 Before addressing the issues, we note Maschke did not file a brief with this court in response to the City's claims on appeal. In First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493, 495 (1976), our supreme court set forth three distinct discretionary options a reviewing court may exercise in the absence of an appellee's brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires; (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee's brief; or (3) it may reverse the trial court when the appellant's brief demonstrates prima facie reversible error that is supported by the record. Here, the record is simple, and we can decide the issues easily without the aid of an appellee's brief.
¶ 26 B. Actual Notice of a Dangerous Condition
¶ 27 The City first contends the trial court erred when it determined the City was not immune from liability because it had actual notice of a dangerous condition. The City argues Maschke failed to prove the City knew the tree limb posed a hazard.
¶ 28 The tort liability of a municipality is governed by the Act. Ory v. City of Naperville, 2023 IL App (3d) 220105, ¶ 23. The purpose of the Act is to protect local governments and their employees from liability arising out of the operation of government. Ory, 2023 IL App (3d) 220105, ¶ 23.
¶ 29 Section 3-102(a) of the Act provides a local public entity is not 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." 745 ILCS 10/3-102(a) (West 2022). Under the Act," 'actual notice means notice of the condition only, not the unsafe nature of the condition.'" Ory, 2023 IL App (3d) 220105, ¶ 26 (quoting Glass v. City of Chicago, 323 Ill.App.3d 158, 163, 751 N.E.2d 141, 146 (2001)); see Vacala v. Village of La Grange Park, 260 Ill.App.3d 599, 614, 636 N.E.2d 812, 822 (1994); Tracy v. Village of Lombard, 116 Ill.App.3d 563, 57273, 451 N.E.2d 992, 999 (1983). "A municipality's actual notice of a condition can be established by (1) a municipal employee's actual knowledge of the defect in question [citation] or (2) a prior report of the defect to the municipality [citation]." Ory, 2023 IL App (3d) 220105, ¶ 26. Further, notice is imputed to the public entity where one of its employees has actual knowledge of the defect in question. Glass, 323 Ill.App.3d at 163, 751 N.E.2d at 146.
¶ 30 "The burden of proving notice is on the plaintiff." Ory, 2023 IL App (3d) 220105, ¶ 24. "In a bench trial, it is the trial judge's responsibility to determine the credibility of the witnesses, to weigh the evidence and to make the necessary determinations of fact. An appellate court will not disturb those determinations unless they are against the manifest weight of the evidence." Sauers v. Tibbs, 48 Ill.App.3d 805, 809-10, 363 N.E.2d 444, 447 (1977). In applying section 3-102(a), "[t]he question of notice is generally one of fact but becomes a question of law if all the evidence, when viewed in the light most favorable to the plaintiff, so overwhelmingly favors the defendant public entity that no contrary verdict could ever stand." Ory, 2023 IL App (3d) 220105, ¶ 24.
¶ 31 Here, the City argues there was a lack of evidence of actual notice because Hennelly inspected the tree in 2020, found it was healthy, and nothing afterwards indicated there was a defect. However, Maschke testified about his concern the tree was leaning and had damaged limbs. Hennelly also testified there was a wound at the base of the limb. He further admitted another limb presently on the tree near the location of the fallen limb did not look healthy. Hennelly did not address the lean of the tree. Moreover, Hennelly told Maschke he would "keep an eye on it," indicating knowledge of an ongoing condition affecting the tree. Maschke then testified he told other City workers about the tree on multiple occasions, imputing further notice to the City. Thus, regardless of Hennelly's assessment, the City had additional notice through Maschke's oral reports of the problem to City employees. Accordingly, the City's argument there was no evidence of notice is incorrect.
¶ 32 The City also argues Maschke failed to prove the tree limb was a hazard in 2020. But Maschke was not required to notify the City the tree was dangerous in order for it to have actual notice. The City was on notice once it was informed the tree was damaged. Glass, 323 Ill.App.3d at 163, 751 N.E.2d at 146.
¶ 33 In sum, while the City presented evidence supporting its contention it lacked knowledge of the condition, it is incorrect in arguing Maschke's evidence was entirely lacking. The trial court was entitled to give more weight to Maschke's evidence based on its credibility determinations and its review of the evidence. Therefore, given Maschke's evidence supporting a finding the City had actual notice of the defect, the court's determination of that issue was not against the manifest weight of the evidence.
¶ 34 C. Immunity Based on Weather Conditions
¶ 35 The City next argues it was immune from liability under section 3-105 of the Act because the damage was caused by weather conditions.
¶ 36 Section 3-105(a) provides:
"Neither a local public entity nor a public employee is liable for an injury caused by the effect of weather conditions as such on the use of streets, highways, alleys, sidewalks or other public ways, or places, or the ways adjoining any of the foregoing, or the signals, signs, markings, traffic or pedestrian control devices, equipment or structures on or near any of the foregoing or the ways adjoining any of the foregoing. For the purpose of this section, the effect of weather conditions as such includes but is not limited to the effect of wind, rain, flood, hail, ice or snow but does not include physical damage to or deterioration of streets, highways, alleys, sidewalks, or other public ways or place or the ways adjoining any of the foregoing, or the signals, signs, markings, traffic or pedestrian control devices, equipment or structures on or near any of the foregoing or the ways adjoining any of the foregoing resulting from weather conditions." 745 ILCS 10/3-105(a) (West 2022).
¶ 37 We first note section 3-105(a) provides immunity for injuries caused by the "effect of weather conditions as such on the use of streets, highways, alleys, sidewalks or other public ways, or places, or the ways adjoining any of the foregoing." 745 ILCS 10/3-105(a) (West 2022). However, the damage in this case was not alleged to have been caused by the effect of weather on streets or sidewalks. Maschke alleged the damage to his truck was caused by the City's failure to trim or remove a tree. "The classic applications of section 3-105 are accumulations of snow or ice on streets and sidewalks [citations] and to defective streets and sidewalks [citation]." See, e.g., Salvi v. Village of Lake Zurich, 2016 IL App (2d) 150249, ¶ 48, 66 N.E.3d 894 (citing cases). Thus, section 3-105 has been held inapplicable outside of such circumstances. See Salvi, 2016 IL App (2d) 150249, ¶ 48.
¶ 38 In any event, even if we found section 3-105 applicable, the record does not establish the damage was caused by weather conditions. Hennelly testified "there were pockets of isolated showers and storms mainly in Rockford late afternoon or early night," and the exhibit of the weather report stated there were "a few isolated cells" in Rockford. However, precisely where those "isolated cells" or "pockets" occurred in Rockford was not established. Meanwhile, Maschke testified he did not observe any storms or wind gusts, and the photograph of the limb on his truck does not show signs of leaves or other limbs on the surrounding street, leading to an inference weather was not a factor. Thus, the trial court's decision on the matter was not against the manifest weight of the evidence.
¶ 39 D. Discretionary Immunity
¶ 40 Finally, the City contends it is immune from liability under section 2-109 of the Act, which provides "[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2022). The City argues an employee is not liable when the act or omission giving rise to the injury was both a determination of policy and an exercise of discretion. See Monson v. City of Danville, 2018 IL 122486, ¶ 29, 115 N.E.3d 81. Based on that argument, the City submits Hennelly's actions in deciding how to evaluate and treat the tree were discretionary. However, the City never raised section 2-109 as an issue in the trial court and instead raises the matter for the first time on appeal.
¶ 41 Arguments that a party fails to raise in the trial court are forfeited and may not be raised on appeal. Ittersagen v. Advocate Health &Hospitals Corp., 2021 IL 126507, ¶ 76, 186 N.E.3d 378. The purpose of the forfeiture doctrine "is to encourage parties to raise issues in the trial court, thus ensuring both that the trial court is given an opportunity to correct any errors prior to appeal and that a party does not obtain a reversal through his or her own inaction." 1010 Lake Shore Ass'n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14, 43 N.E.3d 1005. Here, the City merely speculates, if the trial court had considered the issue, it would have found section 2-109 applied. Because the City failed to raise the matter at trial, we determine it forfeited its argument of the issue on appeal.
¶ 42 III. CONCLUSION
¶ 43 The trial court's findings in favor of Maschke were not against the manifest weight of the evidence. Accordingly, for the reasons stated, the court's judgment is affirmed.
¶ 44 Affirmed.