Appeal from the Circuit Court of Du Page County; the Hon.
Helen C. Kinney, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant village appeals from the judgment of the circuit court of Du Page County in favor of plaintiff, who broke his leg after falling on a stairway in the village hall. Because we find no error at trial and the case was properly submitted to the jury, we affirm.
Plaintiff, James J. Tracy, brought this action to recover from injuries suffered in a fall on a stairway in the village hall of defendant, the village of Lombard (village). On the morning of May 21, 1980, Tracy appeared in traffic court in the courtroom on the top floor of the village hall. Tracy at that time was on crutches, having suffered an injury to his left hip in a prior accident. Tracy was found guilty of a traffic offense and left the courtroom accompanied by Debbie Jean Phillips, who has since married Tracy. Eyewitnesses for the village testified that Tracy was angry and moved rapidly as he left, which was denied by Tracy and his wife. Tracy proceeded down the first series of stairs a few steps behind Phillips. He fell when he reached the third step up from the first landing, asserting that his left crutch caught in the stair tread. In his fall, Tracy broke his left femur about three inches below the previously suffered fracture.
The stairs where Tracy fell were dry and clear of debris. However, there were cracks in the tile of which Tracy and the village submitted numerous photographs. The only measurements of the cracks admitted into evidence were those taken by Donald Ross Bauer, the village's building inspector, with a ruler. At trial, Bauer described the design of the stairs and the tile and their maintenance. Bauer reported the dimensions of the nine measurable cracks on the third step up from the landing. Although no widths were taken on those nine cracks, Bauer testified that none were significantly wider than the ruler, which he described as "a weak 1/8" inch. Depths ranged from 1/16 inch to 3/32 inch. Lengths ranged from two to nine inches. The village introduced into evidence a diagram of Bauer's measurements.
For Tracy, Dr. Joseph C. Ritscherle testified concerning Tracy's medical condition before and after the accident at issue here. Also for Tracy, Lynn Barnes testified concerning construction work he would have given to Tracy to do on his restaurant if Tracy had been able.
The jury returned a verdict in Tracy's favor, but found Tracy to be 50% comparatively negligent. It therefore assessed recoverable damages of $62,500 as 50% of the $125,000 that it had determined to be the amount of damages suffered. The trial court denied the village's motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial, and entered judgment on the verdict.
On appeal, the village raises several issues: (1) whether cracks in stairway tile of the size in this case are non-actionable as a matter of law; (2) whether a judgment for the village notwithstanding the verdict should be awarded; (3) whether proffered evidence of the absence of previous accidents on the stairway was properly excluded; (4) whether the village's jury instructions relating to its notice of the unsafe condition were properly denied; (5) whether Tracy's evidence on lost earnings was too speculative to be admissible; (6) whether the jury was properly instructed on aggravation of a prior injury; (7) whether Tracy's counsel's arguments warrant a new trial; and (8) whether the damages awarded were excessive.
A local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition. (Ill. Rev. Stat. 1979, ch. 85, par. 3-102; Hennings v. Centreville Township (1973), 56 Ill.2d 151.) The village first contends that under this standard the cracks in the tile of the stairway were so small as to be non-actionable as a matter of law. The village's witness measured the cracks to be no more than 3/32-inch deep and about 1/8-inch wide.
The village cites Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601, and its progeny for the proposition that, where all reasonable minds would agree that a defect is so minor that no danger could reasonably be foreseen, the question should be withdrawn from the jury. These cases all related to sidewalk defects and emphasized that, in determining which defects are "minor," each case must be examined as to its own particular facts. (11 Ill.2d 601, 604; Warner v. City of Chicago (1978), 72 Ill.2d 100, 104; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App.3d 15, 20, 405 N.E.2d 1383, 1387; Baker v. City of Granite City (1979), 75 Ill. App.3d 157, 160, 394 N.E.2d 33, 34.) While all agreed that minor sidewalk defects are not actionable, each concluded that the defect in the sidewalk at issue, which ranged in those cases from 1 1/2 inches deep to "about 2" inches deep, was actionable under the circumstances. (Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601; Warner v. City of Chicago (1978), 72 Ill.2d 100; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App.3d 15, 405 N.E.2d 1383; Baker v. City of Granite City (1979), 75 Ill. App.3d 157, 394 N.E.2d 33.) However, Warner suggests that a 1 1/8-inch variance would not be actionable (72 Ill.2d 100, 104), and in Walter v. City of Rockford (1947), 332 Ill. App. 243, 74 N.E.2d 903, a 3/4- to 1-inch variance was held non-actionable.
More on point, the village discusses five cases in which the condition of a stairway is at issue. In each of the five, the reviewing court held that a directed verdict or judgment notwithstanding the verdict in the defendant's favor would have been appropriate. In Robinson v. Southwestern Bell Telephone Co. (1960), 26 Ill. App.2d 139, 167 N.E.2d 793, the court concluded that there was no evidence of negligence where the plaintiff allegedly tripped on a rubber mat at the top of a stairway. The mat, which had 11/16-inch wide and 1/8 to 1/4 inch deep hexagonal holes, was not shown to be damaged or in a defective condition. In Turner v. Chicago Housing Authority (1956), 11 Ill. App.2d 160, 136 N.E.2d 543, testimony that the metal nosing of a step was "shiny" and "slippery" was insufficient to establish the existence of an unsafe condition. In Heneghan v. Carson Pirie Scott & Co. (1936), 285 Ill. App. 595, 3 N.E.2d 153 (abstract of opinion), the plaintiff failed to make out a prima facie case since there was no proof that the stair or the metal strip on which she allegedly tripped was in a defective or dangerous condition. In McKnight v. Wire Properties, Inc. (D.C. App. 1972), 288 A.2d 405, the plaintiff claimed that her heels caught in the metal corrugations or grooves measuring 3/8-inch wide and 3/16-inch deep. The reviewing court affirmed the judgment n.o.v. for defendant because there was no evidence of negligent construction or maintenance. Finally, in State-Planters Bank & Trust Co. v. Gans (1939), 172 Va. 76, 200 S.E. 591, the court found insufficient evidence of negligence where the 3/16 inch thick rubber treads on marble stairs were somewhat frayed around the edges and had holes the size of a 25 or 50 cent piece.
• 1 As noted, the determination of whether a defect is so minor as to be non-actionable depends upon the particular facts of each case. (Warner v. City of Chicago (1978), 72 Ill.2d 100, 104.) However, in River v. Atlantic & Pacific Tea Co. (1961), 31 Ill. App.2d 232, 175 N.E.2d 593, the court, while recognizing the particularities of each case, found a discernible pattern in negligence cases involving the conditions of flooring in business establishments. That court noted that "if there is positive evidence of defects in the flooring, such as holes, worn boards or depressions, and some direct evidence, however slight, which associates plaintiff's fall with that defect, the problem becomes a jury question and verdicts for plaintiffs are usually affirmed. [Citations.] Where, however, the fall occurs upon a floor not having any depression, concavity, hole or other defective condition and there is nothing upon which the jury can reasonably find negligence, it is improper to submit the case to the jury." 31 Ill. App.2d 232, 236-37, 175 N.E.2d 593, 595-96.
Similarly, in Robinson v. Southwestern Bell Telephone Co. (1960), 26 Ill. App.2d 139, 167 N.E.2d 793, the court stated the following:
"Examination of rules of law on this subject discloses that liability may result when some foreign substance is placed or allowed to remain on the floor so that it causes a person to slip and fall. On the other hand, it is held that if slipping and falling occurs on the natural floor, such as polished wood, tile or terrazzo, there is no liability on the ground that there is no negligence in having a floor of common accepted design." 26 Ill. App.2d 139, 143, 167 N.E.2d 793, 795.
Thus, it appears that in flooring cases some positive evidence of a defect, however slight, is enough to send the case to the jury, provided causation is also established. In each of the cases cited by the village, with the exception of the non-Illinois case of State-Planters Bank & Trust Co. v. Gans (1939), 172 Va. 76, 200 S.E. 591, the only possible defect would have been in design, and the plaintiff did not prove unreasonably dangerous design. By contrast, in the present case it is undisputed that measurable cracks not originally in the tiles had developed. The existence of these cracks places this case in the first category of cases discussed in River v. Atlantic & Pacific Tea Co. (1961), 31 Ill. App.2d 232, 175 N.E.2d 593, those in which "there is positive evidence of defects in the flooring, such as holes, worn boards or ...