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Klein v. City of Chicago

FEBRUARY 16, 1973.

NAOMI PAULINE KLEIN, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS — (THE CITY OF CHICAGO, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 23, 1973.

Plaintiff, in a bench trial, was awarded a judgment of $77,766 against the City of Chicago for injuries sustained from a fall caused by a defective sidewalk. The City's third party complaint against Standard Oil was dismissed and no appeal has been taken from that order.

The City appeals from the judgment contending that: (1) plaintiff failed to comply with the notice requirements of Section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, par. 8-102); and (2) the judgment was against the manifest weight of the evidence.

On the afternoon of June 19, 1968, plaintiff and her daughter, Mrs. May McKinney, were walking south on the east side of Western Avenue. They reached the intersection of Blue Island and Western Avenues and stopped for a red light, intending to cross to the west side of Western Avenue. When the light changed, they started to cross the street. However, as plaintiff began to move, she stepped into a hole in the sidewalk causing her to fall. Plaintiff's daughter lived in an apartment almost directly opposite the scene of the fall, on the west side of Western Avenue, about four buildings to the north of Blue Island. When plaintiff fell, her daughter left her in the care of a woman who had been walking behind them and proceeded across the street to her apartment. An ambulance was summoned. Plaintiff's son-in-law went to the intersection, carrying a chair. He placed plaintiff in the chair and waited for a fire department ambulance to arrive. As a result of the accident plaintiff fractured the right femur and is now confined to a wheelchair.

Plaintiff filed notice with the City on August 14, 1968, as required by Section 8-102 of the Tort Immunity Act. Ill. Rev. Stat. 1969, ch. 85, par. 8-102. *fn1 The City contends that the notice was defective because it contained an inaccurate description of the location of the accident. With respect to the location, the notice stated:

Place of Accident:

At or near Blue Island Avenue and Western Avenue. 50' E. of a sightline for East curb of Western Avenue. 19'10" N. of a sightline for North curb of Blue Island Avenue.

The notice also stated:

"Description of Occurrence:

Claimant was pedestrian who tripped and fell on defective sidewalk."

Plaintiff, her daughter and son-in-law testified that the accident occurred about three to five feet from Western Avenue and not 50 feet, as stated in plaintiff's notice. Thus "50" could possibly have been a typographical error intended to read "5."

The City called one Alphonse Gorski, an employee of the City of Chicago Corporation Counsel, who testified that he was familiar with the intersection of Blue Island and Western Avenues and that the condition of the corner in May 1970 was about the same as in June 1968, and that he did not recall seeing a hole at the intersection. Two fire department ambulance drivers testified that they picked up the plaintiff on the west side of Western Avenue whereas plaintiff and her daughter and son-in-law had testified that she was on the east side of the street. The City also called one of the investigators for the Law Department of the City who had examined the site of the accident on May 14, 1970. At that time he made a diagram of the area of the intersection which contained an area of broken sidewalk. He identified that defect as the same defect depicted in plaintiff's photographs as the situs of the accident. *fn2 Finally, the City introduced a letter from plaintiff's orthopedic surgeon, Dr. Vachout, addressed to her attorney, which stated:

"This patient was first seen by me at St. Anthony's Hospital on June 20, 1968, with the history of having injured herself when she slipped from a curb, ...


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