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Warchol v. City of Chicago

OPINION FILED AUGUST 8, 1979.

DENISE WARCHOL, A MINOR, BY FRANCES WARCHOL, HER MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The plaintiff, Denise Warchol, a minor, brought suit through her mother, Frances Warchol, to recover damages for personal injuries she allegedly suffered when she slipped while walking on an iron fence and fell against a tree. She named as defendants the city of Chicago, Delores Ann Glista, Mary Ann Rodriguez and Edward Glista, Jr. The Circuit Court of Cook County granted a motion to dismiss the complaint as to the city and granted the motion for summary judgment filed by the other defendants. The plaintiff appeals those orders.

In her amended complaint the plaintiff alleged that on July 14, 1972, the defendant, city of Chicago, possessed, maintained and controlled a portion of the sidewalk and parkway located at 4301 South Wolcott Street in Chicago. She further alleged that the individual defendants owned and controlled the property at this address, which was adjacent to the sidewalk and parkway. The plaintiff claimed that on that date she was playing in the vicinity of the parkway and was injured when she stumbled and fell to the ground. At the time the plaintiff was 15 years old and "was in the exercise of that degree of care required of a child of her age, intelligence, capacity, experience and understanding."

The plaintiff raised two counts against each defendant. Count I essentially presented a straight negligence action. In this count, the plaintiff alleged that the city was guilty of one or more of the following acts of negligence:

"(a) Maintained a tree and tree stump in such location, in such a condition, as to be dangerous to any individual or individuals using the way in question, of which condition this defendant had notice or in the exercise of reasonable care would have had notice;

(b) Negligently allowed the erection and maintenance of the iron fence in question at the aforesaid location;

(c) Negligently failed to prohibit the erection of such dangerous condition on or adjacent to a public way;

(d) Negligently failed to enforce the applicable ordinances of the Municipality and as contained in the Municipal Code of Chicago, when said defendant knew or in the exercise of reasonable care should have known that such violation would cause injury to others."

Also in count I the plaintiff alleged that the individual defendants were guilty of one or more of the following acts of negligence:

"(a) Maintained a tree and tree stump in such location, in such a condition, as to be dangerous to any individual or individuals using the way in question, of which condition these defendants had notice or in the exercise of reasonable care would have had notice;

(b) Negligently maintained the iron fence in question over a public way contrary to the applicable ordinances of the City of Chicago;

(c) Negligently placed or caused to be placed and maintained upon a public way an obstruction, in violation of certain ordinances of the City of Chicago;

(d) Negligently broke or otherwise changed the condition of a public way in violation of ordinances of the City of Chicago."

Count II was based upon an attractive nuisance theory. The plaintiff alleged that the iron fence, in conjunction with the tree and tree stump, created a condition which was "inherently attractive to children" and that the defendants "knew or in the exercise of ordinary care ought to have known" that this condition attracted children to play. She then alleged the defendants were guilty of one or more negligent actions which ...


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