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Hess v. City of Chicago

OPINION FILED OCTOBER 26, 1981.

DOROTHY HESS, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PHILIP A. FLEISCHMAN, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Dorothy Hess (plaintiff) brought suit against the City of Chicago (defendant) for her injuries suffered from a fall on a city sidewalk. The trial court directed a verdict for plaintiff on the issue of liability and the jury awarded damages of $122,250. Defendant appeals.

Plaintiff testified that on July 8, 1977, at approximately 6:30 p.m. she was walking north on the west side of Broadway, slightly north of Waveland Avenue in Chicago. Plaintiff was 63 years old. The sidewalk was damp because of a misting precipitation. Plaintiff had never previously walked in that area. The block is predominately commercial. Plaintiff was walking with a friend, Hope Gates.

Plaintiff was talking to her friend, Hope Gates. Plaintiff was wearing very low heels "like a saddle shoe or tennis shoe might be." She carried only a purse. Plaintiff testified, "I noticed there was a big crack in the sidewalk so I made sure I got over that one, but then when my other foot came down I caught the next crack in the sidewalk." On cross-examination plaintiff described the "elevation" of the sidewalk crack as "It's about one and a half inches to two. About one and a half inches." A color photograph in evidence shows the condition of the sidewalk. Plaintiff was not looking at her friend but she was "looking straight ahead."

Plaintiff suffered a severe fracture of her left upper arm. She underwent three orthopedic operations to repair the break. Plaintiff's medical expense was approximately $43,000. Her doctor, an orthopedic surgeon, testified plaintiff would probably suffer permanent stiffness and restricted mobility of her left shoulder. No point is raised by defendant as to the amount of the verdict.

Hope Gates testified she is familiar with that particular section of Broadway. She identified the photograph of the defect. That condition had existed "At least about a year before she [plaintiff] had the accident." No questions were put to this witness on cross-examination.

Plaintiff also called Daniel Morsovillo for examination under section 60 of the Civil Practice Act. He is a senior operations analyst for the defendant's department of streets. He testified the defendant employed 50 sidewalk inspectors during July of 1977. They do not make sidewalk inspections without a preceding complaint. However, plaintiff questioned this witness by use of his testimony in another case (some three years earlier). The witness had testified there that defendant's inspectors inspect sidewalks in their respective areas, "I would say once a year * * *."

No witnesses were called by the defendant.

In this court, defendant contends liability should not have been determined as a matter of law but the jury should have been permitted to perform its function as the trier of fact. Plaintiff contends defendant waived this issue by failure to present a proper post-trial motion; defendant offered no objection to direction of a verdict for plaintiff on liability and the verdict on liability was properly directed for plaintiff.

Plaintiff argues defendant's motion for new trial lacked sufficient specificity to warrant appellate review. We reject this argument. In Keen v. Davis (1967), 38 Ill.2d 280, 282, 230 N.E.2d 859, the supreme court held a post-trial motion is not required before a party may appeal from a directed verdict. To the same effect is Larson v. Harris (1967), 38 Ill.2d 436, 439, 231 N.E.2d 421. We also note the comment on Keen in Robbins v. Professional Construction Co. (1978), 72 Ill.2d 215, 223-24, 380 N.E.2d 786.

We will first consider the motion of plaintiff to dismiss the appeal and objections thereto filed by defendant. This motion was taken with the case. The post-trial motion was denied on September 12, 1980, and defendant's notice of appeal was filed October 12, 1980. Without citing any authority, plaintiff argues deductively from the major premise that defendant's motion for new trial, filed on August 14, 1980, was defective because it lacked specificity. Plaintiff reasons that since the motion was legally insufficient it was tantamount to filing no motion and therefore the notice of appeal was tardily filed. We disagree.

• 1 The pertinent rule (Supreme Court Rule 303(a), Ill. Rev. Stat. 1979, ch. 110A, par. 303(a)) does not require filing of a complete, proper or specific post-trial motion. It simply requires the filing of a "timely post-trial motion directed against the judgment * * *." The form of said motion and the legal correctness of the matters therein averred are immaterial. In the case before us the motion was sufficient to raise issues as to the propriety of the court order which directed a verdict in favor of plaintiff and against defendant on the issue of liability. It was therefore sufficient to stay the running of the time limitation upon the filing of the notice of appeal. Plaintiff's motion to dismiss the appeal is denied.

We find three separate issues on the merits of this appeal. Whether the trial judge properly directed a verdict in favor of plaintiff on the issue of liability requires a ...


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