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Parson v. City of Chicago

OPINION FILED AUGUST 18, 1983.

TONI PARSON, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Plaintiff was severely and permanently injured in 1980 when a car after hitting a pothole on a street veered to its right and struck her. She sued both the driver of the car and the city of Chicago, as owner of the street. The jury returned a verdict against both for $1,250,000. Only the city of Chicago appeals. On appeal the city contends that:

(1) it had no duty to improve the street and that arguments and evidence of plaintiff could have led the jury to find it liable because no curbs had been installed;

(2) the trial court erred in refusing to allow evidence there had been no prior accidents on this street;

(3) the trial court erred in refusing to grant a mistrial after certain television commentaries and newspaper articles on the failure of asphalt crews to actually do their work;

(4) the trial court erred in permitting the admission of a gruesome photograph of plaintiff after she was injured;

(5) testimony concerning the diminution in plaintiff's earning potential was improperly admitted.

This court finds no reversible error and affirms.

The accident occurred on South St. Louis Street in Chicago. South St. Louis as characterized by both sides is a W.P.A. street built during the depression and later taken over by the city. It is much narrower than the usual street, being 18 feet wide, and has no curbs or gutters. Cars parking along the street pull up next to the sidewalk.

On April 19, 1980, until about 10 p.m. plaintiff was a healthy, normal 17-year-old senior in high school. She was very active in sports. She and her boyfriend, Mark Myers, had been laying sod that afternoon. She and Mark had pizza and then sat on the front porch. About 10:15 they walked to Mark's car which was parked next to the sidewalk. Plaintiff stood leaning against Mark's car conversing with him until the accident.

About this time the Duncans, also defendants but not appellants in this case, turned down St. Louis because a freight train blocked their route on West 55th Street. Thelma Duncan was driving; her husband was a passenger. According to their testimony, when the car hit a pothole in the street it veered to the right and ran into plaintiff. Several neighbors testified that immediately after the accident Thelma Duncan was hysterically crying that she had hit a hole and lost control of the car.

There is no dispute that there was a pothole in the street. According to police officer McCarthy, the investigating officer, the areas of the pothole he examined, for one minute by flashlight, were one to three inches deep. The other witnesses, all people who were familiar with the street, testified the pothole, which was 2 1/2 to three feet wide and four feet long, ranged from two to eight inches in depth, it being deeper in some places than in others. The city produced evidence that there had been work crews out on the street in October, November and December, 1979, and March 1980. However, again, there were about eight witnesses who testified that the pothole had been there at least three months. There was some evidence that complaints had been made about the pothole. There was also evidence that unimproved streets such as this were lowest on the priority list for street repairs, being repaired only on an emergency basis or complaint basis where it was verified that repairs were needed. There was a different standard of maintenance care for improved and unimproved streets; unlike unimproved streets, the city attempts to bring the surface of improved streets back as nearly as possible to the original condition.

The Duncan car struck plaintiff and she ended up under the automobile. After the car stopped, she looked up and saw "on my hip it was just a bunch of flesh and muscle and blood was all over and I just started screaming." The pain caused her to scream although she was in a semiconscious state and she "felt like dying." The paramedic who responded to the call found her suffering from traumatic amputation of the leg as well as spinal, neck, head and chest injuries. Plaintiff was rushed to the hospital. Dr. Saletta, the surgeon who first saw her, testified all the muscles of her anterior thigh were lacerated up to the inguinal skin crease, the femur and upper part of the thigh bone were fractured and only an inch of skin held the lower leg to the upper thigh. Dr. Saletta felt that he had no choice but to operate. Muscle had to be removed along with the remainder of the femur, because there was insufficient muscle and skin to cover the area.

After surgery, plaintiff while in the hospital was in a great deal of pain. When she first saw herself in the mirror she hated it and determined to kill herself because she could not stand people looking at her. Plaintiff still has trouble wearing a prosthesis, which Dr. Saletta said was probably due to insufficient muscular protection over the hip socket. ...


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