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Warner v. City of Chicago

OPINION FILED MAY 26, 1978.

MARION C. WARNER, APPELLANT,

v.

THE CITY OF CHICAGO, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. David A. Canel, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

A Cook County circuit court jury awarded plaintiff $53,996 as damages for injuries suffered in a fall on an allegedly defective city of Chicago sidewalk. The appellate court reversed, finding the defect to be so slight that it was not actionable as a matter of law. (43 Ill. App.3d 691.) We granted plaintiff leave to appeal.

The injuries occurred March 26, 1965, near plaintiff's residence on Ridgeway Avenue in Chicago. Although it had snowed on the previous day, the sidewalk had been shoveled and only about one-half inch of freshly fallen snow was on the sidewalk at the time of the occurrence. Plaintiff testified that while following a "light path" made by other pedestrians along the edge of the sidewalk, she stubbed her toe on a raised slab, lost her balance and fell. She stated that she did not see this defect as she was walking because it was covered by the snow. She denied slipping on the snow, asserting that tripping over the raised slab was the sole cause of her fall. According to plaintiff's estimate, the slab was raised about 2 inches above the adjoining slab at the point where she stubbed her toe. A city investigator testified that he measured the height to be a maximum of 1 1/8 inches at the point where plaintiff's toe struck the slab, but this measurement was taken 5 1/2 years after the accident occurred.

In finding for the plaintiff, the jurors answered special interrogatories indicating that they found the city negligent in its maintenance of the sidewalk and that this negligence was the proximate cause of plaintiff's injury. In addition, the jury found that plaintiff had not been contributorially negligent. The city's post-trial motion for judgment notwithstanding the verdict was denied.

The appellate court reversed, stating that, as a matter of law, plaintiff had failed to establish that the defect in the sidewalk would cause a reasonably prudent person to anticipate some danger to pedestrians, a necessary precedent to recovery under the rule of Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601. In Arvidson, plaintiff fell and was injured when she caught her heel on a defective slab of sidewalk which was 2 inches higher than the adjoining slab. The municipality maintained that plaintiff had no cause of action on these facts. This court there recognized the numerous and diverse authorities involving the difficult issue of whether height differences between adjoining sidewalk slabs constitute questions of fact for the jury or of law for the court. The court concluded that "[a] survey of the decisions does indicate * * * that the law does not exact of a municipality the duty of keeping all sidewalks in perfect condition at all times, and that slight inequalities in level, or other minor defects frequently found in traversed areas, are not actionable. Storen v. City of Chicago, 373 Ill. 530; 19 McQuillin, Municipal Corporations, 3d ed., sec. 54.80." (11 Ill.2d 601, 604.) The court then noted the crucial question in such cases:

"The rule in Illinois, reiterated in the case law, is that a jury question on the issue of the city's negligence is presented only when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it. [Citations.]" (11 Ill.2d 601, 605.)

The court went on to hold that under the particular facts presented, "it cannot be found that all reasonable minds would agree that the 2-inch variation and the height of the adjoining slabs of the sidewalk near the curb was so slight a defect that no danger to pedestrians could reasonably be foreseen." 11 Ill.2d 601, 609.

There is no doubt that the observation in Arvidson that minor sidewalk defects are not actionable still represents the view of the great majority of jurisdictions. (See Annot., 37 A.L.R.2d 1187 (1954), as supplemented by A.L.R. Later Case Service (1977).) The diversity of opinion arises in determining which defects are "minor," and in resolving that question each case must be examined as to its own particular facts. "[N]o mathematical standard can be adopted in fixing the line of demarcation * * *." (Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601, 604.) An unacceptable height variation in one location, such as a busy commercial area where pedestrians must be constantly alert to avoid bumping into one another, may be non-actionable in another area, such as a residential one. Carlin v. City of Chicago (1914), 262 Ill. 564, 573; Fischer v. Kansas City (Mo. App. 1969), 446 S.W.2d 451, 454; Westler v. City of Milwaukee (1967), 34 Wis.2d 272, 276, 149 N.W.2d 624, 625; City of Beaumont v. Henderson (Tex. Civ. App. 1961), 349 S.W.2d 301, 304.

Turning to the facts in the case before us, we believe that the city's evidence, a 1 1/8-inch-maximum height variation, would indicate that, in view of the surrounding circumstances, no cause of action would lie due to the minimal nature of the defect. However, the 5 1/2-year delay in obtaining that measurement greatly reduces its probative value, and the jury could reasonably believe that plaintiff's testimony more accurately described the condition of the sidewalk at the time of the occurrence. In our judgment a reasonably prudent person should anticipate some danger to those walking upon a sidewalk in the condition described by plaintiff. Nor do we believe the jury's finding that plaintiff was exercising due care at the time of the accident was contrary to the manifest weight of the evidence. The defect was not apparent because it was obscured by the snow, and, in our opinion, it was not unreasonable for her to follow the path trod by others even though it traversed the raised slab. Were the defect uncovered and apparent to those upon the sidewalk, however, the question of plaintiff's due care would be less easily resolved, but that is not the factual situation here. (See, e.g., Rider v. City of Norman (Okla. 1970), 476 P.2d 312.) We emphasize, too, that our holding should not be construed as diminishing the force of the general rule that a municipality is not liable for minor sidewalk defects. We decide only that in the circumstances of this case the evidence presented a question for the jury.

Defendant contends that the trial court erred in admitting certain photographs of the accident site because they portrayed the sidewalk without snow rather than the actual condition at the time of plaintiff's fall. However, the fact that conditions had changed at the time the photographs were taken does not necessarily render them inadmissible, so long as the jury is not misled. (3 Jones, Evidence sec. 17:53 (6th ed. 1972).) Since it was made clear to the jury that the photographs merely depicted the nature of the defect and not the condition of the surface at the time of the occurrence, they were properly admitted into evidence.

Lastly, defendant contends that plaintiff simply slipped on the snow and fell, and that her testimony was manufactured subsequent to her injury, a suggestion denied by plaintiff. Defendant argued this theory to the jury, and there is nothing in this record to warrant our entering the province of the jury and rejecting its finding thereon.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or ...


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