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City of Burbank v. Glazer





APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.


Both the appellant (city) and the appellee (Glazer) in the instant case were originally sued in one action by another party for negligence. The city did not in that action counterclaim against Glazer. At the close of that plaintiff's case, the trial court directed a judgment for Glazer. The city was later found liable to that plaintiff. The city now sues Glazer and another party for indemnity, claiming that their negligence, based on issues not raised by the original plaintiff, was the cause of the city's liability. The trial court in the present action granted Glazer's motion to dismiss on the grounds of res judicata. We reverse and remand, finding that the evidence in the record does not reveal that the issues raised in the city's complaint in the present case were actually and actively litigated by the two parties in the earlier suit.

The plaintiff, the city of Burbank, alleged in its complaint that it had been held liable to Antoinette Hausner for injuries she suffered when she tripped on a cracked sidewalk. It further alleged that it was only a passive and secondary wrongdoer and that the defendants Glazer and Better Living Builders, through their agents and employees, were the primary and active wrongdoers. The city specifically charged that Glazer had employed Better Living Builders to build and lay a black top parking lot on Glazer's property and that Better Living Builders, individually and as Glazer's agent, negligently failed to protect the adjoining sidewalk, negligently drove and operated heavy construction equipment over the sidewalk and otherwise negligently operated and maintained the construction causing the cracks in the sidewalk which caused Hausner's injury.

The defendant Glazer thereupon moved for dismissal on the grounds the action was barred by res judicata. The only evidence introduced by Glazer in support of his motion was the order in the first case directing the verdict for Glazer and against Hausner. The city in arguing against the motion introduced into evidence Hausner's complaint, Glazer's answer, the city's answer and seven pages of the transcript of the report of proceedings. From these the following facts can be garnered: Hausner's claim against both Glazer and the city of Burbank was based on the theory that they owned the sidewalk on which she fell and that therefore they:

a. Carelessly and negligently caused and allowed the said sidewalk to be in an uneven and broken condition, so that the said sidewalk was in a dangerous and defective condition;

b. Carelessly and negligently caused and allowed a hole or depression to be and remain on said sidewalk;

c. Carelessly and negligently allowed an unsafe and dangerous condition to exist on the said sidewalk in that they were wet, slippery and covered by ice and snow;

d. Carelessly and negligently failed to give the plaintiff warning of the dangerous and defective condition of its sidewalk;

e. Carelessly and negligently allowed said sidewalk to be and remain in an unsafe and dangerous condition, although they knew, or should have known of the said defective and dangerous condition;

f. Otherwise so carelessly and negligently owned, operated, constructed and maintained their respective sidewalk that the plaintiff was caused to trip, stumble and fall thereon.

At trial her claims against Glazer were apparently reduced to the contention that Glazer caused an unnatural accumulation of ice and snow. This was rejected and a verdict was directed against Hausner and for Glazer at the end of her case. The city of Burbank had not counterclaimed against Glazer so the trial court in that case could not attempt to rule on any issue between Glazer and the city except that it appears from the limited excerpts from the record introduced by the city that the issue whether the sidewalk was a public one was litigated by the parties and ruled upon.

The trial court in this case after considering this evidence and the arguments of the parties granted Glazer's motion. It further found that there was no reason to delay the appeal.


• 1 To avoid multiplicity of litigation, instability and inconsistency in judgment and to further the rule that there be an end to litigation, the courts> have created the doctrine of res judicata based on the principle that once a person has litigated, or in some instance could have litigated, an issue in a former action in a court of competent jurisdiction, he should not be permitted to litigate it again to the harassment and vexation of his opponent. (46 Am.Jur.2d Judgments § 395 (1969).) But while this doctrine is applicable both to attempts to relitigate the same cause of action and to attempts to relitigate the same issues in a different claim or cause of action, it must be noted that there is a wide difference between the effect of a judgment as a bar to the prosecution by the same parties of a second action upon the same claim, demand or cause of action (often called res judicata, direct estoppel by judgment or claim preclusion) and its effect as a bar to the relitigation of particular facts or issues in ...

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