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Kittoe v. Metropolitan Sanitary Dist.

OPINION FILED MARCH 26, 1979.

JOANNE KITTOE, A MINOR, ET AL., PLAINTIFF-APPELLEE,

v.

THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. JANCZY, Judge, presiding.

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

This is an appeal from a jury verdict and judgment for $80,000 for Joanne Kittoe (plaintiff), and against the Metropolitan Sanitary District of Greater Chicago (defendant). Plaintiff's claim was for personal injuries arising out of a one-car accident. An automobile driven by plaintiff skidded on a patch of ice and collided with a utility pole on 138th Street in the Village of Riverdale.

Defendant contends that the trial court erred in denying its motion for directed verdict at the close of all the evidence and in denying its post-trial motion for judgment notwithstanding the verdict, or in the alternative for a new trial. Defendant further contends that plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff testified that on January 1, 1973, she was operating an automobile westbound on 138th Street in Riverdale, Illinois, accompanied by Ronald Boerema (her husband now) and Jeff Yudiek, the owner of the automobile. She was not licensed to drive, but did have a learner's permit. She had been driving for approximately one year. It was night. The road was an unlighted, two-lane street which stretched from Halsted to Ashland uninterrupted by intersections. The weather was cold. Plaintiff had operated the vehicle for some time prior to entering 138th Street at Halsted. Plaintiff testified that the speed limit on 138th Street was 45 or 50 miles per hour. She was driving at approximately 40 or 45 miles per hour with lights on low beam when she came upon a section of ice covering the road. Her car went out of control and collided with a utility pole. As a result plaintiff suffered severe injuries. Plaintiff testified that, as a passenger in another vehicle, she had traveled this same road the preceding night. No ice was encountered on that trip.

On cross-examination plaintiff testified that although this night was the first time she had driven this car, it was substantially similar to the one she was accustomed to driving. She further stated that the accident occurred in front of the driveway of an industrial property operated by Fritz Enterprises, Inc. (Fritz), approximately halfway between Halsted and Ashland.

Officer Ronald Bonneau of the Riverdale Police Department testified that on or about January 1, 1973, he noticed a patch of ice approximately at the entrance to Fritz's. This was about halfway between Halsted and Ashland. At that time there existed a clay hole, covered by water, on the north side of 138th Street east of Fritz's. He had previously noted water coming from the clay hole property and going onto the street. He reported that the road was very dangerous in the vicinity of Fritz's property because it was covered from side-to-side with solid ice. In fact, his squad car slid off 138th Street within a week of January 1, 1973, due to the icy conditions. Bonneau stated further that there was also ice about 500 feet east of Ashland. There were times during the winter of 1972-1973 when the road was blocked off because of ice. He had been aware of complaints by surrounding landowners of water coming out of defendant's property.

Richard Kittoe, father of the plaintiff, testified that at 2 a.m. on January 2, 1973, he went to 138th Street. There was no vehicle there, but he did notice that an extensive section of road, 3 or 4 blocks of concrete, was covered with ice from Fritz's property west toward Ashland. Kittoe further testified that he returned to the scene on January 2, 1973, at 1:30 p.m. Ice and water remained on the road. The water was coming out of a ditch on the north side of 138th Street. It really was not a ditch, but a slight indentation. He put little pieces of paper in the water and saw that the current flowed out of the west gate on defendant's property toward Ashland. He described the flow as similar to a little river, 1 to 1 1/2 feet wide. Kittoe further testified that he did not see any water coming out of Fritz's property.

On cross-examination, Kittoe testified that he saw the ice and thought the accident occurred about 500 to 600 feet from Ashland Avenue. He later corrected himself and stated that the ice and location of the accident were closer to 2000 feet from Ashland.

Ronald Boerema, now plaintiff's husband, testified that as he, plaintiff and Jeff Yudiek were driving on 138th Street, the car hit a patch of ice about three car lengths long. The car slid south, left the road surface, and came to rest against a telephone pole. The patch of ice was located near Fritz's building. He further testified that there is a lake located on the north side of 138th Street. A little bit further west towards Ashland is Fritz's and then a junkyard is located on the corner of Ashland and 138th Street. Boerema stated that he went back to the scene after the accident and saw water flowing from the clay hole on defendant's property, but he did not examine the location closely. On cross-examination, Boerema stated that the weather was cold and clear. It had not rained December 31, 1972, or January 1, 1973.

William McNeil, an employee of Fritz's, testified that he was familiar with the defendant's property during the time defendant was carrying on the sludge operations. He stated that there was always water on defendant's property, but it was 40 feet down in the clay hole before defendant started putting in the dredgings. When the clay hole had been filled in, the water came up to street level. Mr. McNeil stated further that he had seen water flowing west out of defendant's property to the street, but had never seen water flowing out of Fritz's property. He stated that defendant had a fence in front of its property which was caving in from erosion by water. At one time defendant brought four or five truckloads of stone and dumped them over the fence in order to restore it. Mr. McNeil further stated that defendant's property is 50 feet from the driveway of Fritz's property. The water came out of defendant's place about 75 feet from that driveway. There was a storm sewer in the ditch on the north side of 138th Street, but it was not operating at the time defendant put sludge on their property. Mr. McNeil stated that "they got it operating after we had all the water on the street."

Donald Krause, Superintendent of Public Works for the Village of Riverdale, testified that during the winter of 1972-1973, the village had complaints regarding water on 138th Street between Ashland and Halsted. He was specifically sent to the area to determine the source of the water. He ascertained that the water main was not leaking. Then he followed the water to find its source. It flowed out of the defendant's clay hole and traveled under the fence on the west end of the property. The water collected on 138th Street just east of Fritz's driveway. There was a 50- to 60-foot area where the water buildup completely covered the street. At that time, he was not aware of any sewer system there. The village had no sewer system there according to their plans. Mr. Krause further testified that the fence surrounding defendant's property on 138th Street was collapsing from erosion since the water was right up to the fence.

Testifying for the defendant, Leon Turner, employee of the Chicago District Army Engineers, stated that he is a construction representative. His duties entail inspection of construction sites to ensure good quality. He was involved with the dredging spoil disposal site on defendant's property. He started there in 1969, and would inspect the area daily. The Cal-Sag Canal was being dredged about a half-mile from the disposal site. The last of the disposable material was pumped through defendant's property in October of 1972. At the final inspection, the clay hole had water in it about a foot and a half below the surface of the ground. Mr. Turner stated further that he still works in the area and passes through upon occasion. To his knowledge, there was never a situation when water from the clay hole overflowed onto 138th Street. Also, there had been no repairs to the fence surrounding defendant's property, other than those necessitated by traffic damage.

Edward Brosius, defendant's security guard, testified that he patrolled the defendant's property on 138th Street. He never received any complaints in December 1972 or January 1973 concerning that street. He further testified that during that period he never observed water flowing onto the street from defendant's property. He stated that he had seen ice on the street but not when other areas were clean.

David Nelligan, defendant's security guard, testified that at one time there were barricades blocking 138th Street when the State or county were doing work on the road. He never observed water coming from the defendant's property ...


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