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Wolter v. Chicago Melrose Park Associates

OPINION FILED JANUARY 30, 1979.

MARLENE WOLTER, PLAINTIFF-APPELLANT,

v.

CHICAGO MELROSE PARK ASSOCIATES, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CECIL J. BURROWS, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, Marlene Wolter, brought this action in the circuit court of Cook County to recover damages for personal injuries she sustained when she slipped and fell on ice in the parking lot of defendant, Chicago Melrose Park Associates. The jury returned a verdict for defendant. Judgment was entered on the verdict. Plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied. Plaintiff appeals.

The following issues are presented for review: (1) whether plaintiff's post-trial motion properly preserved the error alleged concerning the sufficiency of the evidence; (2) whether the evidence proved that plaintiff's injuries were the result of defendant's negligence; and (3) whether certain instructions submitted to the jury were proper.

Defendant, Chicago Melrose Park Associates, owned and maintained a parking lot used for the customers of the Winston Plaza Shopping Center located in Melrose Park, Illinois. On the afternoon of December 28, 1971, plaintiff drove the family station wagon to the Winston Plaza Shopping Center accompanied by her three young children. It was a clear, cold day; visibility was good. Plaintiff turned into the driveway of the shopping center parking lot and proceeded toward a store known as Madigan's. She testified that the driveway was clear of ice and snow. At the west wall of Madigan's, there was a parking aisle marked with a northbound one way sign. Plaintiff turned into this lane and found an available space she approximated to be about 8 or 10 spaces down on the left side of the aisle. She pulled in between two other cars and parked on a northwest diagonal.

After parking, plaintiff opened the driver's door, got out facing toward the front of the car, and noticed she was standing on solid ground. She then leaned back into the car to get her purse and pick up her baby who was in the front seat. She placed her baby in her left arm and her purse over her right arm, and then took several steps backward in order to clear the baby's head from the car. Her other two children were sitting in the back seat. In order to open the door for them it was necessary for her to walk around the back of the car to the right rear door since she testified that the left rear door of the car had been stuck for some time.

After turning around and taking one step toward the back of the car, she felt her left leg slipping backward, causing her to fall forward. As she was falling, she threw her arm up to protect the baby's head and fell on her left elbow. While on the ground and looking south toward Madigan's for help, she noticed several spots of ice by the rear wheels of other cars. She also noticed the ice patch she had fallen on. She described it as being three feet in diameter, frozen solid, its color blending into the pavement, and located near the left rear wheel of her car. She testified that she had not noticed these ice patches before she fell. As a result of the fall, plaintiff suffered a fracture and dislocation of the humerus from her left elbow joint which required hospitalization and surgery.

Two photographs were admitted into evidence which plaintiff testified depicted the area in which she fell. According to plaintiff, one photograph, taken about 2 1/2 weeks after the accident, showed the "gully" she slipped on, the only difference being that the ice had melted and there was water over one inch deep in it. The other photograph, which plaintiff said she first saw eight months after the accident, showed the general area of her fall with pools of water in several of the parking stalls.

On cross-examination, plaintiff admitted that she did not know the exact parking stall she had pulled into, but it was between the 8th and 10th stall, and that she determined the gully was one inch deep not on the day of the accident but after she went back to the scene a few weeks later. When asked how she knew which gully was the one she slipped on, she answered that she knew it was in the approximate area. Plaintiff admitted that after she got the baby out of the car, she took about two steps toward the back of the car, not one step as she stated on direct examination. Not expecting ice to be there, she said she did not look down at the pavement. She stated that she had frequently used the parking lot in the past but never observed these gullies anywhere in the lot prior to her accident. She also stated that she measured several gullies but selected only one of those to testify about because that was the spot where she was most sure that she fell. She admitted that she did not actually measure the depth of the gullies but rather estimated their depth, and that the gullies were different sizes, some deeper than others.

Lester Kolom, a traffic safety engineer, testified that at plaintiff's request he inspected the parking lot twice in September of 1973, which was almost two years after the date of the accident. He observed the entire area but confined his inspection of the parking area immediately north of Madigan's west wall to some 15 parking stalls located in the northbound lane.

When checking the smoothness of a surface, Kolom referred to a standard set out in a 1958 publication entitled "State of Illinois Standard Specifications for Roadway and Bridge Construction." The publication, Kolom said, indicated that the standard test for smoothness was that within a 10-foot straight length there should not be more than a one-quarter inch deviation. Kolom testified that this was the standard adopted by the industry. He stated that this standard would also apply to parking lots or any other type of road surface since the design is selected and based upon the heaviest vehicle that will use the surface, and the design, construction, and maintenance of a parking lot surface is the same as a street or highway. Kolom testified that the best way to check for depressions or deviations in the pavement was to inspect the surface shortly after a rainfall so pooling of water was easily observable. A deviation from the standard would have a tendency to create pooling if the water was not conducted away by a drainage system. He inspected the lot in September of 1973, shortly after a rainfall and found it to be defective since he found depressions in the pavement over one-quarter inch deep and pooling of water. In his opinion, ice forming in these depressions created an unreasonably dangerous condition.

Although Kolom testified that there were no specific standards for safety maintenance of a parking lot, he stated that periodic inspections and corrective measures should be taken. He testified that the best measure to take on this type of parking lot was to apply a surface coat of bituminous asphalt to the parking aisles which he noticed was done on the main driveways of the lot. In the alternative, he stated, sand or salt could be used on the ice patches. Kolom testified that this type of pavement deteriorated progressively. Each year additional and deeper crevices would form. This progressive deterioration, Kolom said, was very rapid in the first few years after the initial installation of the lot, and then after about three years it slowed down. Kolom testified that by his observation he could tell that the defects on the lot had been materially the same for the last two years.

On cross-examination, Kolom admitted that he did not record the actual depth of the pools of water but stated they were such gross deviations that he knew they were greater than one quarter inch. He also testified that he had never seen a parking lot after it had been used for a period of time that conformed with the smoothness standard. He was shown records which indicated that $30,000 worth of work was done on the lot between the years 1969 and 1971. He stated that this would tend to show a management interest in reducing risk but could not say due to the size of the lot whether it was an acceptable management risk without knowing the actual state of repairs.

The only other witnesses to testify at trial were plaintiff's husband, treating doctor, and girl friend who testified in most part to the injuries plaintiff sustained. At the close of plaintiff's case, defendant made a motion for a directed verdict which was denied. The jury returned a verdict for defendant upon which the court entered judgment. Plaintiff's motion ...


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