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Repinski v. Jubilee Oil Co.

OPINION FILED JUNE 6, 1980.

WALTER REPINSKI ET AL., PLAINTIFFS-APPELLANTS,

v.

JUBILEE OIL COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Walter Repinski, brought this action to recover for injuries he suffered from a fall on a sidewalk in Chicago. His wife also sought to recover for the loss of her husband's support and services. The trial court directed a verdict for defendants at the close of plaintiffs' case. Plaintiffs appeal and contend that the trial court erred: (1) in directing a verdict for defendants, and (2) in granting defendants' motion in limine to exclude reference to Walter's suicide attempt and his resulting brain damage.

On November 27, 1973, Walter was walking to his job as a punch press operator as he had for the past 14 years. As he was crossing a driveway which led to a gas station operated by defendant, Jubilee Oil Company (Jubilee), he caught his foot in a depressed area of the driveway and fell. The portion of the driveway on which he tripped was also a sidewalk. He suffered a dislocated humerus and shattered its upper end. He was hospitalized and underwent a series of unsuccessful operations. He was released from the hospital with a permanent disability to his shoulder. Walter was later informed that he would be unable to return to work because of the injury. On March 4, 1974, Walter ingested a number of sleeping pills in an apparent suicide attempt. Although he survived, he was left with brain damage which affects his speech, his numerical ability, and his memory. He has not worked since his fall and requires the constant care of his wife. His condition has been diagnosed as permanent and is not expected to improve.

In their complaint, plaintiffs alleged various instances of defendants' negligence and specifically that they negligently caused the driveway to be uneven and depressed between one and a half and two inches and negligently failed to maintain the sidewalk in a reasonably safe condition.

Before trial, Jubilee made a motion to exclude any evidence of Walter's suicide attempt. The trial court stated that it found no causal relation between the fall and the suicide attempt and granted the motion in limine. Plaintiffs made an offer of proof that if called as witnesses, several neighbors would testify regarding Walter's depression following his release from the hospital and his learning that he was permanently disabled and unable to work. In addition, a psychologist would testify that the suicide attempt was connected with Walter's shame about being unable to work and that there was a causal connection between his accident and the attempted suicide. He would further testify that at the time of the attempt, Walter was suffering from a psychotic condition of depression and was bereft of his free will. He would also describe the resulting brain damage which affects Walter's speech, numerical ability and memory.

The following pertinent evidence was presented to the jury. Walter testified that at 6:30 a.m. on November 27, 1973, he left for work. On his regular route to work he walked two blocks to the Lincoln Avenue bus stop; he then took the Lincoln Avenue bus to Berteau, which took from 10 to 15 minutes. On the morning in question he crossed Berteau to buy a newspaper. He continued walking east on Berteau heading toward work carrying the newspaper and also a lunch bag. The sidewalk was dry.

He testified that he stepped in a hole with the toe of his shoe which became hooked in the hole and he fell. The hole was located on a part of the Jubilee gas station driveway where it crossed the public sidewalk. He said that the driveway was used by cars going in and out. He testified that the hole was circular in shape, about a foot or a foot and a half in diameter, and about an inch and a half deep. He said he had crossed the driveway on his way to and from work for 14 years and had observed the hole for two or three years.

On cross-examination Walter testified that he got off a northbound bus on the southeast corner of Lincoln and Berteau. He said he got there at about a quarter to seven and denied that in an earlier deposition he had said he got to the bus stop at five minutes to seven. He crossed to the northwest corner to get a newspaper, crossed back again and then walked east on Berteau. He testified that he was then about five blocks from work and it would take him about 15 minutes to cover that distance. He denied that he was late for work but admitted that he had testified in his earlier deposition that he was late.

He testified further on cross-examination that several times a week he would walk past the Jubilee gas station over the driveway sidewalk and that he was familiar with the walk and the hole for at least two years. Although he testified at the trial that he saw the hole in the sidewalk on the morning that he fell, he admitted that in his deposition he had testified he didn't see it. At the time of the accident he was carrying a lunch bag and a newspaper under his arm and the paper was slipping a little as he was walking through the gas station area. He denied that the paper distracted him or that he was not watching where he was going. However, in his prior deposition he testified that he was trying to adjust the newspaper by putting it a little further under his arm when he stepped in the broken concrete and fell.

Edna Repinski, plaintiff's wife, testified that her husband had to be on the job at 7 a.m. She said she could recall saying in her earlier deposition that plaintiff left for work at 20 minutes to seven.

At the close of plaintiffs' case, each defendant moved for a directed verdict. The trial court found no duty or breach of duty by either defendant and granted the motions. Judgment was entered for defendants and this appeal followed.

OPINION

I.

Plaintiffs contend that the trial court erred in directing verdicts for defendants since the evidence presented raised factual disputes which should have been resolved by the jury. Verdicts may be directed only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) With this standard in mind, the propriety of the directed verdicts as to each defendant will be considered.

A. The City

• 1 It is clear that the city has a duty to maintain its property in a reasonably safe condition (Ill. Rev. Stat. 1977, ch. 85, par. 3-102) and that this duty includes keeping its streets and sidewalks safe for the purposes for which they are intended and for the use of those exercising ordinary care. (Thorsen v. City of Chicago (1979), 74 Ill. App.3d 98, 107, 392 N.E.2d 716.) The city has recognized this duty and has provided for a division of ...


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