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Lapidus v. Hahn

OPINION FILED MAY 26, 1983.

LENORA LAPIDUS, PLAINTIFF-APPELLEE,

v.

THERESA HAHN, SPECIAL ADM'R OF THE ESTATE OF LOUIS HAHN, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Warren D. Wolfson, Judge, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Plaintiff was injured on January 12, 1976, when she slipped on some ice while leaving the apartment building where she lived. She suffered a comminuted fracture of the left elbow. Her arm is now deformed and useless. The jury awarded her damages of $350,000 against the landlord; the trial court reduced this to $250,000. The landlord appeals, contending: (1) the trial court erroneously denied the defendant's motion for a directed verdict; (2) the plaintiff's issue instruction was erroneous; and (3) the jury was clearly prejudiced as shown by the excessive verdict returned.

The appellee in her brief asks the court to reinstate the original award.

Six witnesses testified at trial, all for the plaintiff. They were the plaintiff, her husband, John and Rose Tellima, who occupied the second-floor apartment of the two-story building, plaintiff's daughter, Phyllis Ruggerio, Frank Diakakis, who worked next door, and Dr. Ray, who had treated the plaintiff.

At the time of the accident, plaintiff and her husband lived on the first floor of a two-story building owned by defendant's decedent (hereinafter simply called defendant). The Tellimas occupied the top floor. Defendant did not live in the building but according to plaintiff he came by every day.

The building is a brick building, with a sloped roof. A series of about eight cement steps lead up to two doors, the one on the left being the Lapiduses', the one on the right the Tellimas'. These doors are not in the center of the building but occupy the right third of it. There is a railing on both sides of the stairs — it goes all the way to the doors. The top step, or platform as it is called by the witnesses, is not protected by the roof but is open to the sky.

At the time of the accident, plaintiff was nearly 56 years of age. She had been a diabetic for about 20 years. She and her husband had occupied the apartment for 2 1/2 years. During that whole time, whenever it rained or snowed, water dripped from the roof onto their door and onto the platform in front of their door where it formed a puddle. It did this every time it rained or snowed. There was a "corrosion" on the platform caused by these constant puddles. This watermark had been present since the time they moved in. According to the photograph in evidence the watermark did not come up to the door of the apartment but ended several inches in front of the door. Plaintiff testified that the water hit their door and not the Tellimas'. However, the picture indicates the water mark extended at least partially in front of the Tellimas' door. Plaintiff testified the puddle only disappeared by evaporation. There was also a crack running the length of the platform near the step. It was not a wide crack and did not directly cause the plaintiff's fall. However, she said it "formed the puddle."

On the day in question there was, as usual, an ice patch in front of the door. It was one-quarter inch thick. It had not been there a week before but since plaintiff had not been out she did not know when it had been formed. Likewise she did not know whether the temperature was above or below freezing. Plaintiff was running short of insulin and decided to go to the drugstore. She was aware of the ice puddle in front of the front door but decided to use those stairs because the back stairs looked worse. She opened the door, which swung in, and stepped out, closed the door and turned to grab the railing. She slipped and fell on her left elbow, crushing the bones. She was taken to the hospital where Dr. Ray treated her; he operated on her the next day. Throughout this period she was in excruciating pain and was given pain pills. The last time she saw Dr. Ray was about a year or year and a half after the accident. He mentioned various surgical possibilities. However, because plaintiff had gone into a coma after an operation in 1960, she was afraid to have another one. Plaintiff took prescriptive pain pills for about two years, then quit because she was becoming addicted to too many. Now she takes Extra Strength Tylenol when she experiences pain, which she does at least once a day. She can now do very little around the house. Generally she just does needlework and watches television. Her daughter and her children take care of her and her husband. Plaintiff showed her arm to the jury. Photographs introduced in evidence show the left arm as distorted and bent. Plaintiff agreed that she was right handed and it was her left arm that had been injured.

Alfred Lapidus agreed with his wife that ever since they had lived there puddles had accumulated on the platform whenever there was any form of precipitation. Ice puddles would form from the drippings whenever it was very cold out. If it was a water puddle, it would either run off or evaporate. Likewise, the platform itself was uneven in that there was an indentation in front of the door. This condition had existed before they moved in.

About a week before the accident there had been about 2 1/2 or three inches of snow. Mr. Tellima had cleaned off that accumulation. After the snow it had gotten very cold and did not warm up, but it was warm the afternoon before the accident. It had to be above freezing because the water was running down from the roof and there was no other way it would drip. However, Alfred admitted dripping occurred when the sun would shine on the snow on the roof and melt it.

He went out the afternoon before the accident. There was no accumulation on the landing at that time. Water was pouring down from the roof onto the door and onto the landing. There was a puddle of water in front of the door at least the width of the door.

On the day of the accident he saw the platform when he went to get the mail about 8:30 or 9 a.m. The mailbox is on the outside of the apartment. He saw the accumulation of ice, about one-half inch or one inch thick, in front of the door in the puddle, the area around the puddle. This was the same area in which he had seen the water the afternoon before. There was a little dripping from the roof at the time.

He further testified that at the time of the accident (he was not an eyewitness) it was above freezing. He knew this because the streets were clear and wet. "The streets and sidewalks and the steps were, had a slight accumulation of ice. But the sidewalks were wet, street was wet." He did not know whether it had rained or snowed the night before.

John Tellima lived in the second-floor apartment. He had done things around the building for the landlord. In return, his rent was originally reduced by $35, but later this amount was decreased by $10; ...


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