2023 IL App (2d) 220428-U 

No. 2-22-0428 

Order filed November 3, 2023 

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

BRIAN NEFF, ) Appeal from the Circuit Court 

) of Lake County. 

Plaintiff-Appellant, ) 

) 

v. ) No. 20-L-159 

) 

ADVOCATE CONDELL MEDICAL ) 

CENTER and MIDTOWN HEALTH, LLC, ) 

) 

Defendants ) 

) Honorable 

(Advocate Condell Medical Center, ) David P. Brodsky, 

Defendant-Appellee). ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE SCHOSTOK delivered the judgment of the court. 

Presiding Justice McLaren and Justice Kennedy concurred in the judgment. 

ORDER

¶ 1 Held: Summary judgment for defendant on plaintiff’s negligence and premises liability 

claims was proper where no genuine issue of material fact existed as to whether 

defendant had actual or constructive notice of the dangerous conditions—a pothole 

and a burnt-out overhead light—that allegedly caused plaintiff to fall while walking 

in defendant’s parking lot. 

¶ 2 Plaintiff, Brian Neff, was employed as a nurse by defendant, Advocate Condell Medical 

Center. On the evening of November 18, 2019, he was injured when he left work, walked to his 

car, and fell into a pothole in a parking lot that defendant owned. He received workers’ 
2023 IL App (2d) 220428-U 

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compensation benefits until June 2020, when defendant informed him that his benefits would cease 

because he “undertook a personal task after finishing work and at a later time returned to the 

parking lot at work where he fell.” Plaintiff never challenged defendant’s decision. Instead, 

plaintiff sued defendant and Midtown Health, LLC (Midtown), which managed a health club 

adjacent to the parking lot where plaintiff fell. Plaintiff’s counts against defendant concerned 

negligence and premises liability. Plaintiff alleged that defendant failed to exercise reasonable 

care to ensure that there were no defects on its premises, such as the pothole into which he fell, 

that could potentially harm others. Plaintiff also alleged that defendant failed to exercise 

reasonable care to ensure that the lighting on its premises, including the lighting in the area where 

he fell, was operational. Defendant and Midtown moved for summary judgment (735 ILCS 5/2-

1005(b) (West 2018)). Defendant argued, among other things, that (1) it had no notice of any 

defects in the parking lot and (2) plaintiff could not maintain any action against it, as the exclusive 

remedy provision of the Workers’ Compensation Act (Act) (820 ILCS 305/5(a) (West 2018))

provided plaintiff with his sole recourse. The trial court granted defendant’s and Midtown’s 

motions for summary judgment. Plaintiff timely appealed from only the order granting defendant 

summary judgment. We affirm.

¶ 3 I. BACKGROUND

¶ 4 A. Pleadings 

¶ 5 1. First Amended Complaint and Motion for Summary Judgment 

¶ 6 In his first amended complaint, which he brought against defendant and Midtown, plaintiff 

alleged that defendant owned and operated the parking lot adjacent to the Centre Club, the health 

club managed by Midtown. He claimed that defendant had a duty to exercise reasonable care to 

maintain that lot. He alleged in both his negligence and premises liability counts against defendant
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that defendant breached that duty when it “[c]aused and/or allowed a hole, depression and/or 

similar defect to exist for an unreasonable time on the [p]remises, when [d]efendant knew or should 

have known of the existence thereof, and the defective, dangerous and hazardous condition 

resulting therefrom.” Plaintiff also alleged that defendant “[f]ailed to provide sufficient lighting 

on the [p]remises when reasonable and ordinary care would require same” and “[f]ailed to maintain 

lighting fixtures or lamps on the [p]remises when reasonable and ordinary care would require 

same.” Plaintiff alleged that as a direct and proximate result of defendant’s acts or omissions, he 

suffered personal injuries. Plaintiff sought $50,001 in damages. 

¶ 7 Both defendant and Midtown moved for summary judgment. Defendant argued in its 

motion that plaintiff was defendant’s employee and that he was injured in the scope of his 

employment. Thus, the exclusive remedy provision of the Act provided plaintiff with his only 

recourse. Defendant also argued that it was entitled to summary judgment because it had no actual 

or constructive notice of any dangerous condition in the parking lot before plaintiff fell. 

¶ 8 Various documents were attached to defendant’s motion for summary judgment. Included 

in the attachments were plaintiff’s deposition; the deposition of Ryan Ollie, defendant’s manager 

for facilities operations; and the deposition of Kimberly Anne Smith, the manager of the Centre 

Club. The following facts were taken from those depositions and, where referenced, other 

documents contained in the record. 

¶ 9 a. Plaintiff’s Deposition

¶ 10 Plaintiff testified that, on November 18, 2019, he worked a noon to 8:30 p.m. shift for 

defendant. When he arrived at work, he parked in the lot adjacent to the Centre Club. This lot 

was part of defendant’s hospital campus and was open to the public. Although defendant had 

employee parking lots on its campus, those lots were usually full before plaintiff arrived at work 
2023 IL App (2d) 220428-U 

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to start his shift. Thus, he parked “daily” or “regularly” in the lot adjacent to the Centre Club. 

Although plaintiff would sometimes go to the Centre Club before or after work, the main reason 

he parked in the lot adjacent to the Centre Club on November 18, 2019, was to go to work. 

¶ 11 When plaintiff left work at the hospital on November 18, 2019, he was “off the clock.” As 

he was walking to his car parked in the lot adjacent to the Centre Club, one of the lights in that lot 

went out. Although plaintiff could not say whether there were other lights out in the parking lot, 

he recalled that it was dark in the lot. Plaintiff “look[ed] back over [his] left shoulder at [the light 

that went out] and [saw] like the glow of the light, of the actual like filament type area as it was 

still glowing, but there wasn’t really normal light coming out of it.” “[T]he light going out *** 

distract[ed plaintiff] from where [he was] walking.” Plaintiff explained that the light

malfunctioning “caught [him] off guard and by surprise.” Plaintiff “then [took] a step or two, 

maybe five, *** and misstepp[ed] directly into or along the edge of the pothole in the lot.” 

“[B]efore the time that [he] fell, [plaintiff] did not see the pothole at any point in time.” He “made 

no observation or any determination that that pothole existed at any time that day” before he fell. 

Because of the fall, plaintiff suffered injuries to his left foot and ankle, both thumbs, and both 

wrists.

¶ 12 Plaintiff testified that he had not gone to the Centre Club between leaving work and falling 

into the pothole. Rather, “from the time [he] left work until the time [he] fell, [he] had not done 

anything in between that time” other than “[j]ust walking to [his] car.” Plaintiff could not 

remember whether, when he got to his car, he intended to drive home or retrieve his gym bag from 

his car and go exercise at the Centre Club. 

¶ 13 After he fell, plaintiff went into the Centre Club and told an employee there what had 

happened. Plaintiff refused treatment that night. He left the Centre Club, walked to his car, and 
2023 IL App (2d) 220428-U 

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drove home. The next day, plaintiff reported the incident because his supervisor told him to do 

so. 

¶ 14 Shortly after he fell, plaintiff noticed that “there were cones in multiple locations across 

the parking lot to warn people there were potholes, and shortly thereafter they were repaired.” He 

was shown photographs of two potholes, each one of which was marked with a traffic sawhorse 

and/or cone. Plaintiff could not recall if either of these potholes depicted in the photographs was 

the one he fell into. However, he recalled that the pothole he fell into was repaired sometime after 

he fell. In another photograph, he identified the pothole he fell into. This photograph was taken 

from the west, down the line of an east-west row of parking spaces bordered on the north by a 

sidewalk. The pothole was toward the rear of one of the parking spaces. To the east, beyond the 

row of parking spaces, was the Centre Club. The hospital building was to the west and outside of 

what the photograph depicted. A light pole was mounted on the sidewalk in front of the parking 

space that had the pothole. The pole was approximately one car length from the pothole. Although 

plaintiff could not remember if this was the light that was malfunctioning when he fell, he stated 

in the incident report he filed with defendant the day after he fell that “a light went out above 

[him].”

¶ 15 Plaintiff stated during his deposition that he filed a worker’s compensation claim in relation 

to his fall. Plaintiff said that the claim was denied “because they said [he] went to the Centre Club, 

exercised, and left the Centre Club *** when [he] got hurt.” Plaintiff “believe[d] that’s what they 

said.” When asked who told plaintiff his claim was denied, he said, “[I]t could have been human 

resources or someone involved in the human resource department, whether it be disability or the 

initial workman’s comp people, or it could have been the third[-]party workers’ compensation 
2023 IL App (2d) 220428-U 

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person. I don’t recall.” Plaintiff was also asked if he “pursue[d the claim] any further after it was 

denied.” Plaintiff replied that he “[t]ried to understand why.” 

¶ 16 In the record is a June 15, 2020, e-mail from defendant’s attorney to plaintiff’s attorney, 

explaining that defendant had denied plaintiff’s workers’ compensation claim “because [plaintiff] 

undertook a personal task after finishing work and at a later time returned to the parking lot at 

work where he fell.” In the e-mail, defense counsel asked “to see what medical treatment [plaintiff] 

ha[d] undergone and if he ha[d] a compromise settlement position for [defendant].” Nothing in 

the record indicated whether plaintiff responded to this e-mail.

¶ 17 b. Ollie’s Deposition

¶ 18 Ollie indicated that he has degrees in energy engineering and mechanical engineering. As 

defendant’s facilities manager, Ollie was responsible for hiring companies to fix issues with 

defendant’s premises. Although Ollie would “walk the outside campus” weekly, he was “not 

required to walk the parking lots.” Other departments, such as the public safety office, patrolled 

the grounds on a daily basis. 

¶ 19 Ollie stated that defendant was responsible for maintaining the exterior of the Centre Club. 

According to the lease agreement defendant had with the Centre Club, which was referenced 

during Ollie’s deposition, defendant was required to “ ‘make all arrangements necessary to ensure 

adequate and reasonable ingress to and egress from the [club] for Centre’s staff at all times and for 

Centre’s members and guests at all times.’ ” This included the pavement and lighting in the 

parking lot adjacent to the Centre Club. Although defendant’s facilities team, defendant’s public 

safety department, and Midtown worked together, defendant was “ultimately *** responsible” “for 

overseeing the parking lots and the maintenance of the parking lots of the Centre Club.” 
2023 IL App (2d) 220428-U 

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¶ 20 From August to October 2019, defendant hired a paving company to do “[g]rounds 

improvements.” This included “seal coating, crack filling, [and] normal stuff that [one would] do 

on a campus of this size seasonally.” It also included pothole-filling that started in October and 

finished in December 2019. However, defendant “did not have a preventative maintenance 

contract *** for parking lot maintenance as of November 2019 whereby [a contractor] would come 

on some set schedule to perform parking lot inspections.” Likewise, “with respect to the lighting 

in the parking lots back in *** November 2019, [there] was [no] preventative maintenance contract 

in place for any of the outside or exterior lights on [defendant’s] campus.” Rather, defendant fixed 

problems on its campus when it became aware of them. Ollie explained that “if someone alert[ed]

[defendant] that there [was] an issue, the issue [was] addressed.” Thus, “it really [was] a system 

of alerting [defendant] when there[ was] an issue.”

¶ 21 When defendant was notified about problems, defendant hired contractors to fix them. 

Defendant hired a company to repair potholes on its premises on an “as needed but at a minimum 

annually” basis. Concerning the lighting in the parking lot of the Centre Club, Ollie explained that 

there were two components to the lighting system, i.e., the lights and their photosensors. The lights 

came on when they sensed darkness, stayed on while it was dark, and turned off when they sensed 

daylight. Because the lights worked on photosensors, the photosensors “were checked every 

evening *** in a sense.” Ollie could not recall when the contractor defendant hired to fix electrical 

issues was last on the premises to make repairs. However, Ollie indicated that “there was [sic] no 

electrical problems to [his] knowledge [on] November 18, 2019” in the Centre Club parking lot. 

Ollie did not remember contacting a contractor about the lights in the parking lot after plaintiff 

fell. He acknowledged, however, that sometime after November 18, 2019, “someone from the 
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Centre Club did alert [defendant] that there might have been a light that was burnt out in that 

parking lot.” 

¶ 22 Plaintiff’s counsel then asked Ollie to look for, and provide defense counsel with, any 

documents indicating whether a contractor came out before November 18, 2019, to repair the lights 

in the parking lot. Defense counsel assured that “[i]f [defendant had] any such documents, 

[counsel would] check for them and produce them.” (The record does not show that defendant 

ever produced any such documents, and plaintiff filed no motion to compel.) Ollie agreed that 

“[i]f there [was] no record of any electrical contractor coming out to repair a single malfunctioning 

light in the Centre Club parking lot,” then “it [would] be reasonable to conclude that someone from 

[defendant’s f]acilities [department or the Centre Club] went out and looked at that light and 

determined that it was not malfunctioning.” Also, at plaintiff’s counsel’s request, Ollie agreed to 

look for, and provide defense counsel with, any invoices for lightbulbs. (The record does not show 

that defendant ever produced any such invoices, and plaintiff filed no motion to compel.) 

¶ 23 Ollie was questioned about e-mails he exchanged with defendant’s and Centre Club’s 

managers in late November 2019. One e-mail sent to Ollie on November 26, 2019, was from 

Denise Daleo, the Centre Club’s regional general manager. Daleo relayed that one of defendant’s 

employees fell into a pothole in the parking lot adjacent to the Centre Club and was injured. Daleo 

stated, “ ‘We clearly need to get the holes patched,’ ” and she asked Ollie whether patching the 

potholes was the Centre Club’s or defendant’s responsibility. That same day, Ollie responded to 

Daleo. He copied Lisa Wenzlaff, defendant’s leasing manager, and asked Wenzlaff who was 

responsible for repairing the potholes. Wenzlaff responded that defendant was responsible for 

“ ‘all maintenance’ ” “ ‘includ[ing] all sidewalks, parking lots, landscaping[,] and improvements 

per the lease agreements.’ ” 
2023 IL App (2d) 220428-U 

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¶ 24 The next morning, Ollie sent Smith an e-mail, asking her where the pothole was so 

defendant could fix it. Smith responded the same day, saying, “ ‘There are [two] and they are on 

the side closer to the hospital, you can’t miss them, they are pretty big!’ ” Ollie replied that same 

day, saying “ ‘Okay, thanks. I have marked them with construction barricades. See attached 

pictures.’ ” Ollie copied one of his subordinates and asked him to “ ‘fill these potholes with cold 

patch.’ ” 

¶ 25 Ollie testified that Daleo’s November 26, 2019, e-mail was “probably the first time [he] 

was notified of [plaintiff’s] incident occurring.” Ollie believed that, per his November 27, 2019, 

e-mail, his subordinate filled the pothole with cold patch. Ollie explained that cold patch is “used 

to temporarily fill holes[,]” like potholes. Ollie subsequently contacted the contractor that 

defendant used to fix potholes. The potholes were repaired shortly thereafter. Ollie stated that he 

“[did not] have any personal knowledge of when any of the depressions or potholes *** formed.” 

¶ 26 Although Ollie was made aware of the incident report that plaintiff filed with defendant 

the day after plaintiff fell, he did not receive that report before the e-mails were sent at the end of 

November 2019. Ollie read the following portion of the incident report out loud during his 

deposition: 

“ ‘In summary, on November 19, 2019, [a] Public Safety Officer [(PSO) of 

defendant’s] responded to the Public Safety Office for a slip and fall report that occurred 

the night before *** at the parking lot of the Center [sic] Club.’ *** ‘On arrival, the PSO 

spoke with [plaintiff] who related that on November 18th, 2019, at approximately [9:30 

p.m.], while leaving work, [plaintiff] was walking to his vehicle in lot CC when a light 

went out above him and when he looked up, [plaintiff] stepped in a large pothole twisting 

his ankle and falling to the ground. [Plaintiff] related that [he] reported the incident to the 
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Center [sic] Club at the time, but not to Public Safety due to his ankle not hurting too badly. 

[Plaintiff] finally related that the following morning, [he] had his ankle and wrist checked 

by his doctor, finding out that the left ankle was broken, and his right wrist was sprained.’ ” 

¶ 27 Ollie was also questioned about the formation of potholes. He indicated that it was 

“unlikely” that defendant could do anything to prevent potholes. He also stated that “potholes can 

form for [a] multitude of reasons” and that “[a] pothole can form overnight.” Ollie explained: 

“So what happens is there’s cracks in the asphalt pavement or whatever surface you 

have. Moisture gets inside; and then as temperatures drop, it expands into ice, and then it 

starts contracting as it cools off and melts. And over time throughout the seasons, it keeps 

happening until it weakens the cavity underneath the pavement, and then all it takes 

sometimes is just a vehicle rolling over it or just naturally occurring it caves in.

So oftentimes you’ll be driving around Lake Shore Drive for [example] in Chicago, 

and you’ll drive one evening, and it will be fine; and then the next evening, you’ll see all 

these potholes that formed overnight.” 

¶ 28 c. Smith’s Deposition

¶ 29 Smith agreed that defendant was responsible for maintaining the parking lot adjacent to the 

Centre Club. She stated that “if [she] saw a huge pothole or something dangerous” in the Centre 

Club parking lot, “[she] would let [defendant] know,” “absolutely.” Likewise, if she saw that the 

lights in the Centre Club parking lot were malfunctioning, she would notify defendant. Smith said 

that Ollie was most likely the person she would contact. 

¶ 30 Smith stated that, when she had meetings at the hospital, she typically walked on the 

sidewalk near the pothole where plaintiff fell. She was unaware of any pothole or lighting 

problems in that area prior to November 18, 2019. She was also unaware of anyone else falling in 
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the parking lot in the six months before November 18, 2019. She indicated that she would have 

been aware of any lighting problems in the lot given that she worked Monday through Friday and 

that, in November 2019, it was dark when she left work. Moreover, she stated that if there was a 

problem with the lighting before November 18, 2019, “[Centre Club] members would tell [her and 

her staff] that.” Smith agreed that “it [was] fair to assume” that if “no e[-]mail was produced” in 

which she informed defendant of lighting problems in the parking lot, “such an e-mail was not 

sent.” 

¶ 31 Smith stated that, immediately after plaintiff’s fall, the Centre Club’s manager on duty 

prepared an accident report. That report provided that the “[s]treet light was out and [plaintiff] 

tripped on a pothole, was walking between hospital and club.” Smith reviewed the report two days 

later, on November 20, 2019. She signed the report and sent it to Midtown. Smith did not 

remember sending the report to Ollie or anyone else defendant employed. Smith contacted Daleo 

when “[plaintiff] came back and told us he broke *** his wrist and broke his ankle.” Before Smith 

e-mailed Ollie about the two large potholes, she went to the parking lot to inspect them because 

Daleo asked her to do so. Smith “guess[ed]” that she inspected the potholes on November 27, 

2019, when she e-mailed Ollie. 

¶ 32 2. Response and Reply to Motion for Summary Judgment 

¶ 33 In his response to defendant’s motion for summary judgment, plaintiff asserted that he 

initiated a worker’s compensation claim after he fell. Defendant paid him temporary total 

disability (TTD) benefits until approximately June 15, 2020, when it determined that plaintiff was 

not acting within the scope of his employment when he fell. Plaintiff stated that “[i]n response to 

[defendant’s] denial of [his] worker’s compensation claim, [he] filed this action.” Plaintiff argued 
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that, because a question of material fact existed as to whether he was acting within the scope of 

his employment when he fell, defendant’s motion for summary judgment should be denied. 

¶ 34 Plaintiff also argued that (1) defendant was estopped from raising the Act’s exclusive 

remedy provision, as it stopped paying plaintiff TTD benefits; and (2) if the Act’s exclusive 

remedy provision applied, the dual capacity doctrine, which is an exception to the Act’s exclusive 

remedy provision, controlled. Plaintiff elaborated that, under the dual capacity doctrine, 

“[defendant’s] second function as a landlord/lessor of land, or owner of a distinctly separate 

business, generate[d] obligations unrelated to those flowing from the first, that of a hospital [that 

employed plaintiff].” Thus, plaintiff argued that, because defendant acted as both defendant’s 

employer and the landlord of the premises where plaintiff fell, plaintiff could maintain both a 

worker’s compensation claim and a negligence/premises liability suit against defendant. Plaintiff 

claimed that, at the very least, there was a question of material fact about whether defendant acted 

in this dual capacity. 

¶ 35 Additionally, plaintiff argued that an issue of material fact existed about whether defendant 

had actual or constructive notice of the pothole and the lighting issue in the parking lot where he 

fell. Citing Ollie’s deposition and photographs of the barricades over potholes, plaintiff claimed 

that “reasonable minds could draw different inferences from the facts, as to whether the pretty big 

and large cavity/pothole, occurring over time throughout the season[,] was created over [a] 

sufficient amount of time that [defendant] should have noticed same in the exercise of reasonable 

care.” (Internal quotation marks omitted.) Plaintiff contended that “[t]his same principle applie[d] 

to the lights.” Specifically, plaintiff alleged that “reasonable minds could draw different inferences 

from the facts and the disputed testimony between [plaintiff] and Mr. Ollie regarding the flicking 
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[sic] lights, whether the lights and light sensors were indeed properly operating so as to present a 

triable material issue precluding summary judgment.” (Internal quotation marks omitted.) 

¶ 36 In reply, defendant argued that certain facts revealed during the depositions showed that 

defendant did not have any notice of any defects in the Centre Club’s parking lot before plaintiff 

fell. Specifically, defendant asserted that Ollie, Smith, and plaintiff all indicated that they never 

saw a pothole in the parking lot of the Centre Club before plaintiff fell, and Ollie explained that 

depressions in pavement can manifest quickly. Similarly, neither Ollie nor Smith had any prior 

knowledge of problems with the lighting in the lot, and plaintiff indicated that the lights were 

operational up until the time that he fell.

¶ 37 Regarding the Act’s exclusive remedy provision, defendant noted that plaintiff’s estoppel 

argument was premised solely on defense counsel’s June 15, 2020, e-mail to plaintiff’s counsel. 

Defendant claimed that this out-of-court hearsay statement could not create an issue of fact. 

Defendant also asserted that plaintiff’s estoppel claim must fail because defendant’s denial of TTD 

benefits was not a position defendant took in court. Finally, defendant argued that plaintiff’s dual 

capacity argument must fail because defendant’s mere ownership of the parking lot did not give 

defendant a second legal persona. 

¶ 38 B. Trial Court’s Ruling 

¶ 39 The trial court granted defendant’s motion for summary judgment. The court found, 

regarding the Act’s exclusive remedy provision, that the record was not clear whether plaintiff 

went to his car to leave the premises or if he was going to retrieve his gym bag and go exercise at 

the Centre Club. “[B]ut, before getting to his car[,] *** he fell.” The court theorized that defendant 

may have stopped paying plaintiff TTD benefits because plaintiff told defendant that “[he] was 

going to grab [his], you know, bag to go work out.” On that view, the court noted, plaintiff “[was] 
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on a personal errand as opposed to leaving the hospital *** on his way home from work and still 

on [defendant’s] property.” The court found that it was “presented with no facts to determine, 

really other than that testimony, as to which of those scenarios [was] true.” Thus, the court 

determined that it “[did] not have enough evidence here *** to dismiss this [case] pursuant to the 

exclusive remedy doctrine.” 

¶ 40 Concerning defendant’s notice argument, the court found that “there [was] no dispute that 

there was no actual notice of any defects in the parking lot.” The court also found that there was 

no constructive notice of any defects because “plaintiff [failed] to establish that the defect was 

present for a sufficiently long period of time to constitute constructive notice.” The court noted 

that plaintiff did not see any defects at any point prior to his fall even though he walked in the 

Centre Club parking lot almost daily. Likewise, neither defendant’s employees nor Midtown’s

staff saw or were informed about any problems in the parking lot. Thus, the court determined that 

“[o]ther than inferences and speculation, there[ was] no evidence as to how long the condition[s]

existed prior to [plaintiff’s] fall.” However, “the evidence that [did] exist, *** appear[ed] to 

indicate that [any defects were] more of a recent manifestation.”

¶ 41 Given all of that, the court “[found] that there was no notice, be it actual or constructive in 

this case,” and, therefore, judgment for defendant was proper. 

¶ 42 This timely appeal followed.

¶ 43 II. ANALYSIS

¶ 44 1. Summary Judgment 

¶ 45 At issue in this appeal is whether defendant’s motion for summary judgment should have 

been denied. Summary judgment is appropriate where “the pleadings, depositions, and admissions 

on file, together with the affidavits, if any, show that there is no genuine issue as to any material 
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fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) 

(West 2018).

“A defendant moving for summary judgment bears the initial burden of coming forward 

with competent evidentiary material, which if uncontradicted, entitles him to judgment as 

a matter of law. [Citation.] A defendant does not need to prove its case or disprove its 

opponent’s case in order to prevail on its motion. A plaintiff, however, must come forth 

with some evidence that arguably would entitle him to recover at trial in order to survive 

such a motion. [Citation.]” (Internal quotation marks omitted.) Caburnay v. Norwegian 

American Hospital, 2011 IL App (1st) 101740, ¶ 30. 

¶ 46 Summary judgment is a drastic measure and should be granted only if the movant’s right 

to judgment is clear and free from doubt. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Thus, 

summary judgment should be denied when a reasonable person could draw divergent inferences 

from undisputed facts. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). A reviewing court’s function 

is to determine whether a genuine issue of fact was raised and, if none was raised, whether 

judgment was proper as a matter of law. American Family Mutual Insurance Co. v. Page, 366 Ill.

App. 3d 1112, 1115 (2006). In doing so, we construe the evidence strictly against the movant and 

in the light most favorable to the nonmovant. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 

2d 107, 113 (1995). We review de novo the entry of summary judgment. Outboard Marine Corp. 

v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). 

¶ 47 As relevant here, plaintiff’s complaint consisted of two counts, i.e., negligence and 

premises liability. “[W]here a landowner’s conduct in creating an unsafe condition precedes the 

plaintiff’s injury, a plaintiff may elect to pursue a negligence claim, a premises liability claim, or 

both.” Smart v. City of Chicago, 2013 IL App (1st) 120901, ¶ 54. In granting defendant’s motion 
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for summary judgment, the court found that no genuine issue of material fact existed concerning 

either plaintiff’s negligence or premises liability claims. That is, the court determined that plaintiff 

could not establish all the elements of either claim. See Pavlik v. Wal-Mart Stores, Inc., 323 Ill. 

App. 3d 1060, 1063 (2001) (“If the plaintiff cannot establish an element of [his] cause of action, 

summary judgment for the defendant is proper.”). We must determine whether evidence was 

presented on all the elements of either claim. 

¶ 48 “ ‘To recover on a negligence claim, the plaintiff must establish the existence of a duty 

owed by the defendant, a breach of that duty, and an injury proximately resulting from that 

breach.’ ” Milevski v. Ingalls Memorial Hospital, 2018 IL App (1st) 172898, ¶ 28 (quoting Pavlik, 

323 Ill. App. 3d at 1063). A premises liability claim is a negligence claim involving a specific 

duty imposed on a property owner. Id. ¶ 29. That is, “ ‘[p]roperty owners have a duty to exercise 

ordinary care in maintaining their property in a reasonably safe condition.’ ” Id. (quoting Nguyen 

v. Lam, 2017 IL App (1st) 161272, ¶ 20). A property owner breaches that duty when it fails to 

correct a dangerous condition on the property and (1) the property owner knew of, i.e., had actual 

notice of, the condition; or (2) the condition existed for “a sufficient length of time so that, in the 

exercise of ordinary care, its presence should have been discovered, i.e., the [property owner] had 

constructive notice of the [dangerous condition].” Id.

¶ 49 Here, the trial court granted summary judgment because it found no genuine issue of 

material fact existed as to whether defendant breached a duty it owed plaintiff. Specifically, the 

court found no evidence to indicate that defendant had either actual or constructive notice of the 

pothole or lighting issue in the parking lot adjacent to the Centre Club. We agree.

¶ 50 At oral argument, plaintiff conceded that defendant did not have actual notice of the pothole 

or the malfunctioning light, and rightfully so. No evidence suggested that defendant knew 
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anything about either condition before plaintiff fell. Rather, the evidence indicated that the lights 

were “in a sense” (as Ollie stated) checked daily, and no problems were detected before plaintiff’s 

accident. Neither Ollie nor Smith saw any issues with the lighting or were alerted to any problems

by defendant’s staff, Centre Club staff, Centre Club members, or anyone else. Likewise, neither 

Ollie nor Smith saw any potholes in the parking lot before plaintiff fell, and they were not alerted 

to any issues by defendant’s staff, Centre Club staff, Centre Club members, or anyone else.

¶ 51 Additionally, we must conclude that no genuine issue of material fact existed as to whether 

defendant had constructive notice of the pothole or the malfunctioning light. “Constructive notice 

can be shown only where the dangerous condition is shown to exist for a sufficient length of time 

to impute knowledge of its existence to the defendants.” Nguyen, 2017 IL App (1st) 161272, ¶ 20. 

As with actual notice, a plaintiff claiming that the defendant had constructive notice of a dangerous 

condition “must prove that the defendant had timely notice of the specific defect that caused [the 

plaintiff’s] injuries.” Zameer v. City of Chicago, 2013 IL App (1st) 120198, ¶ 23. 

¶ 52 Here, as noted above, no evidence indicated that defendant had actual notice of the pothole 

or the malfunctioning light. Moreover, no evidence indicated that either the pothole or the

malfunctioning light existed for any length of time. Regarding the pothole, Ollie indicated in his 

deposition that, while the formation of a pothole may take a long time, the manifestation of a 

pothole can occur quickly. Consistent with that evidence is the fact that no one—not defendant, 

Ollie, Smith, or anyone else—saw or was informed about the pothole before plaintiff fell. Without 

some evidence suggesting that the pothole existed before plaintiff fell, we cannot conclude that 

there is a genuine issue of material fact about whether defendant had constructive notice of the 

pothole. See Milevski, 2018 IL App (1st) 172898, ¶ 30 (finding no genuine issue of material fact 

existed concerning the defendant’s notice of defective flooring because “all of the evidence 
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suggest[ed] that any defect in the raised flooring was not evident until the time of [the] plaintiff’s 

fall”). Likewise, no evidence suggested that defendant could be charged with knowledge of the 

malfunctioning light. Rather, the evidence, i.e., plaintiff’s deposition testimony, showed that the 

light malfunctioned as plaintiff was walking to his car, mere seconds before he fell. There was no 

evidence that the issue with the light existed beforehand, let alone for a “sufficient length of time”

to warrant imputing knowledge to defendant. See Nguyen, 2017 IL App (1st) 161272, ¶ 20. Again, 

without evidence suggesting that the light was malfunctioning at some point before plaintiff fell, 

we cannot conclude that there is a genuine issue of material fact about whether defendant had 

constructive notice of the light not working. See Milevski, 2018 IL App (1st) 172898, ¶ 30. 

¶ 53 Plaintiff argues that “the fact that [defendant] could not identify when the potholes were 

last filled (before, or after, [plaintiff’s] fall) at least raises enough of a question of material fact to 

preclude summary judgment [on] constructive notice.” (Emphasis in original.) He also claims 

that “Ollie’s description [of how potholes form] is the very essence of the temporal requirement to 

establish constructive notice, especially if such potholes/cavities in the ground originally 

manifested themselves as cracks, and, ‘over time throughout the season[s]’ develop into larger 

cavities.” We disagree. The gradual process Ollie described was not of a crack visibly widening 

into a pothole, but of expansion and contraction underneath the pavement until the surface 

collapses to form a pothole. That collapse, according to Ollie, could literally occur overnight. 

While what Ollie described may have been exaggerated in that the pothole into which plaintiff fell 

was located in a parking lot and not on a road like Lake Shore Drive that is heavily traveled, Ollie’s 

testimony was the only evidence before the trial court of how the pothole manifested. Plaintiff 

could have retained an expert to provide another opinion, which may have raised a genuine issue 

of material fact about whether the pothole existed for a sufficient length of time such that defendant 
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had constructive knowledge of it. Plaintiff failed to provide such evidence, or indeed any evidence, 

of when the pothole causing his fall became visible. That said, even assuming that the pothole in 

question gradually formed from a crack, defendant annually hired a paving company to fill cracks 

and seal coat the pavement. Plaintiff’s mere speculation about when the pothole in question 

manifested is insufficient to raise a genuine issue of material fact sufficient to withstand summary 

judgment. See id. (mere speculation, conjecture, or guess is insufficient to withstand summary 

judgment).

¶ 54 Plaintiff’s arguments regarding the lighting in the parking lot also fail to persuade us that 

summary judgment should not have been granted. Plaintiff suggests that defendant had 

constructive notice of the malfunctioning light because, sometime after January 18, 2019, 

“someone from the Centre Club ‘did alert [defendant] that there might have been a light that was 

burnt out in the parking lot’ where [plaintiff] fell.” We cannot conclude that the fact that someone 

may have told defendant about a parking lot light that may have been burnt out at some point, 

either before or after plaintiff’s fall, raises a genuine issue of material fact about whether defendant 

had constructive notice of a lighting problem that distracted plaintiff before he fell. See id. 

Similarly unavailing is plaintiff’s suggestion that Ollie’s “indeterminate answers” about producing 

documents showing when an electrical contractor was out to repair the lights “itself raise[s] 

questions of material fact as to *** [defendant’s] *** notice of the malfunctioning [lights].” At 

Ollie’s deposition, defense counsel unequivocally said that if such documents existed, defendant 

would forward them to plaintiff; the fact that no documents were forwarded suggests that no 

contractor was out to fix the lights because none of them needed repair. Ollie confirmed as much 

in his deposition testimony. Moreover, and notably, if plaintiff believed that such documents 

existed, he could have filed a motion to compel. He failed to do so. 
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¶ 55 Zameer supports our position that summary judgment was proper here because defendant 

had no notice of either the pothole or the malfunctioning light. In Zameer, the plaintiff sued the

defendant municipality after she tripped and fell on a displaced slab of sidewalk and was injured. 

Zameer, 2013 IL App (1st) 120198, ¶ 4. The defendant moved for summary judgment, arguing 

that it was immune from liability under the Local Governmental and Governmental Employees 

Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102(a) (West 2010)) because it had no 

notice of the defect in the sidewalk before the plaintiff fell. Zameer, 2013 IL App (1st) 120198, 

¶¶ 5, 9. Supporting the defendant’s position was testimony from a civil engineer who, after 

examining photographs of the sidewalk, indicated “that there [was] no way to tell when the defect 

that allegedly caused [the] plaintiff’s injuries came into existence.” Id. ¶ 6. Moreover, although 

the defendant was notified of and repaired problems with its sidewalks at other locations, the 

defendant was never alerted to an issue with the sidewalk where the plaintiff fell. Id. ¶¶ 4, 7-8. 

The trial court granted the defendant’s motion for summary judgment, finding that the defendant 

had neither actual nor constructive notice of the defect in the sidewalk that caused the plaintiff’s 

fall. Id. ¶ 9. 

¶ 56 The appellate court affirmed the order granting the defendant summary judgment. Id. ¶ 24. 

Concerning constructive notice, the court repeatedly observed that there was “no testimony as to 

the length of time the defect existed.” See, e.g., id. ¶ 20. Neither the plaintiff nor her companion 

had any prior knowledge of the defect in the sidewalk, and the civil engineer, who theorized that 

the defect could have developed in as little as three weeks, had no way of determining how long it

existed. Id.

¶ 57 The facts pertaining to notice of the pothole and the malfunctioning light in this case are 

similar to the facts concerning notice of the defect in the sidewalk in Zameer. Here, no evidence 
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showed that defendant had actual notice of the pothole or the malfunctioning light before plaintiff 

fell. Similarly, no evidence indicated that either defect existed for a sufficient time such that 

knowledge of the dangerous condition could be imputed to defendant. 

¶ 58 Plaintiff claims, however, that Zameer is inapplicable because, given the sizes of the 

pothole into which he fell and the other potholes in the Centre Club parking lot, defendant must 

have known about the pothole that caused him to fall. We disagree. Plaintiff’s reference to other 

potholes in the parking lot is irrelevant. At issue is defendant’s knowledge of the specific pothole 

that plaintiff fell into, not defendant’s knowledge of the other potholes in the parking lot. As the 

court in Zameer recognized, the “general condition [of the area where the plaintiff fell] is irrelevant 

to the cause of [the plaintiff’s] fall because the surrounding conditions did not cause [the] fall.” 

Id. ¶ 23. As for the pothole that caused plaintiff’s injury, we note that the only testimony on 

pothole formation came from Ollie. His assertion that a pothole may appear overnight made no 

allowance for the size of the pothole. Again, while Ollie’s testimony on this point may seem 

exaggerated given that plaintiff fell into a pothole in a parking lot and not a major thoroughfare 

like Lake Shore Drive, plaintiff provided no evidence challenging Ollie’s testimony.

¶ 59 Also inapposite is Smith’s comment on November 27, 2018—nine days after plaintiff’s 

fall—that both the pothole that injured plaintiff and another pothole in the parking lot were “pretty 

big.” The fact that these potholes were “pretty big” nine days after plaintiff fell is simply not 

relevant in assessing whether defendant had prior notice of the pothole that caused plaintiff’s 

injuries. It is pure speculation to suggest that the size of the pothole nine days later meant that 

defendant had notice of it before plaintiff fell, especially given the fact that the parking lot was in 

continual use those nine days by Centre Club staff, Centre Club members, and those of defendant’s
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employees who, like plaintiff, were forced to park there because no other parking spots were 

available.

¶ 60 Relying on Nguyen, plaintiff argues that summary judgment should have been denied

because a genuine issue of material fact existed concerning defendant’s constructive notice of the 

pothole. In Nguyen, the defendants, a husband and wife, bought a residential building in 1989, 

which they lived in for many years. Nguyen, 2017 IL App (1st) 161272, ¶ 5. The backyard had a 

concrete catch basin with a metal lid. Id. ¶¶ 5, 9. When the defendants bought the property, the 

husband was told that he should examine the catch basin to ensure that it was not clogged. Id. ¶ 5. 

The husband never did so. Id. However, the husband regularly inspected the backyard, mowed

the lawn, shoveled the snow, and fixed anything that was broken in the backyard. Id. ¶ 6. In doing 

so, the husband walked over the catch basin. Id. He also saw others walk over the basin but never 

noticed or was informed of any issues with the basin. Id. 

¶ 61 In 2014, the plaintiff, an associate of the defendants’ tenants, was in the backyard when

she stepped on the lid of the catch basin. Id. ¶ 7. The lid flipped up, and the plaintiff was injured 

when she fell into the well and straddled the edge of the vertical metal lid. Id. Photographs of the 

catch basin and metal lid showed that the metal lid was substantially corroded, the concrete basin 

was cracked, and the concrete lip on which the metal lid rested was substantially deteriorated. Id.

¶ 9. The plaintiff sued the defendants for negligence, claiming that the defendants failed to 

exercise reasonable care in maintaining their property. Id. ¶ 11. The defendants moved for 

summary judgment, arguing that they did not have actual or constructive notice of the deteriorated 

condition of the concrete catch basin and metal lid. Id. ¶ 12. The trial court granted the defendants’ 

motion for summary judgment. Id. ¶¶ 15-16. 
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¶ 62 The appellate court reversed, finding that “there was evidence from which a jury could 

conclude that the deteriorated condition of the catch basin existed for a sufficient time that [the] 

defendants should have been aware of it.” Id. ¶ 23. Specifically, the defendants lived at the 

property for many years; the husband maintained the backyard and had walked over the catch 

basin; and the defendants, despite being told that they should examine the catch basin, never did 

so. Id. Moreover, the photographs showed that the deterioration of the catch basin “was visible

even when the lid was in place over the well of the catch basin.” (Emphasis added.) Id. From all 

of this, the court concluded that

“[a] reasonable trier of fact could infer from the cracked concrete surface, corroded 

concrete lip, and rusty lid that the defective condition of the catch basin existed for a 

sufficient duration to have given constructive notice to [the] defendants, who should have 

discovered the defect by the exercise of reasonable care.” Id. ¶ 24. 

¶ 63 We find Nguyen unpersuasive. Unlike the deteriorated concrete basin and corroded metal 

lid in Nguyen, there was no evidence that the pothole here existed for a sufficient period of time 

before plaintiff’s fall, such that knowledge of the pothole could be imputed to defendant. As noted, 

the only testimony on pothole formation came from Ollie, who explained that, while a pothole 

forms over time underneath the pavement surface, it does not manifest until the surface collapses. 

Thus, until the surface collapsed to form the pothole in question, defendant would have had no 

knowledge of any problem. According to Ollie, the pothole could have become visible mere hours

before plaintiff fell. Again, while Ollie’s testimony may seem far-fetched given the pothole’s

location in a parking lot, it was the only evidence of pothole formation before the trial court. As 

noted, plaintiff could have retained an expert to rebut Ollie’s testimony, but he failed to do so, and 

he never presented any other evidence establishing when the pothole became visible. 
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¶ 64 Plaintiff urges this court to rely on a discussion in Nguyen of Baker v. City of Granite City, 

311 Ill. App. 586 (1941). The Nguyen court intimated that, in Baker, which also involved a 

plaintiff’s fall into a catch basin with a corroded metal lid, the court employed a commonknowledge approach to conclude that the dangerous condition of the rusted lid existed for a 

sufficient length of time such that knowledge of it could be imputed to the defendant. See Nguyen, 

2017 IL App (1st) 161272, ¶ 21 (citing Baker, 311 Ill. App. at 593). Specifically, in discussing 

Baker, the Nguyen court observed: 

“Although no witness had testified about how long the deteriorated condition had existed 

prior to the plaintiff’s injury, the [Baker] court stated that ‘[i]t is a matter of common 

knowledge that iron will often rust and corrode when exposed to water and weather and 

that such rust and corrosion do not generally occur to any considerable extent or degree in 

a short period of time.’ ” Id. (quoting Baker, 311 Ill. App. at 593). 

¶ 65 Plaintiff suggests that this quote is part of the Nguyen court’s “reason[ing]” and urges us 

to impute knowledge of the defects to defendant because (1) “[i]t is common knowledge that 

potholes, especially those that are ‘large’ and ‘pretty big,’ do not generally occur to any 

considerable extent or degree in a short period of time, but instead will corrode when exposed to 

water and weather”; and (2) “common knowledge indicates that hardware, like light sensors, can 

malfunction with use[, and] lightbulbs do not last forever but dim, flicker[,] and eventually expire, 

especially when exposed to outdoor elements like snow, ice, rain[,] and heat.” 

¶ 66 For three reasons, we reject defendant’s invitation to apply this common-knowledge 

approach in this case. First, the Nguyen court did not expressly adopt a common-knowledge 

approach in concluding that the defendants had constructive notice of the deteriorated concrete 

catch basin and corroded metal lid. Rather, the court determined that, given the husband’s regular 
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inspection of and familiarity with the backyard, the defendants, in the exercise of reasonable care, 

should have discovered the dangerous condition the deteriorated catch basin and corroded metal 

lid created. Id. ¶ 24. Second, as noted, the formation of the pothole here was unlike the corrosion

of the metal lid and deterioration of the concrete basin, which, as the Nguyen court observed, were

“visible.” Id. ¶ 23. Third, while malfunctioning photosensors and burnt-out lightbulbs may, like 

deteriorated concrete basins and metal lids, be visible, no evidence was presented here suggesting 

that the lighting issue “existed for a sufficient duration to have given constructive notice to 

defendants, who should have discovered the defect by the exercise of reasonable care.” Id. ¶ 24. 

Rather, the evidence indicates that there was nothing visibly wrong with the lighting at all until 

mere seconds before plaintiff fell. That is, the light was not out until immediately before plaintiff 

fell.

¶ 67 2. Act’s Exclusive Remedy 

¶ 68 As an alternative basis to affirm the order granting summary judgment, defendant argues 

on appeal, as it did in the trial court, that the Act’s exclusive remedy provision bars plaintiff from 

filing a negligence action against it. We find it unnecessary to address this alternative basis. 

¶ 69 III. CONCLUSION

¶ 70 For the reasons stated, we affirm the judgment of the circuit court of Lake County. 

¶ 71 Affirmed.