Appeal from the Circuit Court of Lake County; the Hon.
Lawrence Inglis, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, the city of Waukegan, appeals from a judgment following a jury verdict entered in favor of plaintiff, Luis Barreto, for $93,000 in damages for injuries plaintiff sustained when he tripped on a cracked and depressed area of the sidewalk in front of his house. The city raises the following issues on appeal: (1) whether the trial court erred in permitting the voluntary dismissal of another defendant, North Shore Gas Company (North Shore), over the city's objection; (2) whether the trial court improperly admitted certain testimony and exhibits; (3) whether the trial court erroneously instructed the jury; (4) whether the trial court should have granted the city's motion for a directed verdict and judgment n.o.v., or alternatively, a new trial; (5) whether plaintiff's counsel's improper remarks made during closing argument improperly influenced the jury; and (6) whether the city was denied a fair and impartial trial due to the cumulative effect of the trial court's erroneous rulings and plaintiff's counsel's improper conduct.
Plaintiff commenced this action by filing a two-count complaint charging the city and North Shore with negligence. In count I, plaintiff alleged, inter alia, that the city, having a duty to exercise reasonable care to maintain sidewalks in a reasonably safe condition for ordinary use, on or about April 14, 1981, permitted the sidewalk at 41 South Martin to be and remain in a poor state of construction and repair, had notice and knowledge of the existence of a dangerous condition prior to April 14, 1981, in ample time to have remedied and repaired the sidewalk, and thus directly and proximately caused the injuries sustained by plaintiff when he stumbled, tripped, and fell over and upon the depression in the sidewalk. In count II, plaintiff alleged that, after conducting excavation and construction work at 41 South Martin, North Shore failed to exercise reasonable care, causing the sidewalk to have a depression so that it was uneven, rough, and unsafe for pedestrian use and failing to restore the area to a condition of safety.
Prior to the beginning of trial, plaintiff petitioned the trial court to enter an order dismissing North Shore and finding that North Shore entered into a good-faith settlement with plaintiff, stating that North Shore offered to pay $12,500 in full and complete settlement of its liability, that counsel for plaintiff and counsel for North Shore believed that North Shore's liability was substantially less than the city's, that $12,500 was a fair and reasonable settlement of the cause of action against North Shore, and that the discussions concerning the proposed settlement were shared with counsel for the city, but he refused to participate in the settlement process. The trial court, after hearing the statement of plaintiff's counsel respecting injuries, facts and settlement discussions, found that the proposed settlement of North Shore's liability was in good faith and dismissed North Shore as a party on the basis of the settlement. While the trial court allowed the city leave to file written objections, none were ever filed.
At the jury trial, plaintiff testified that he lived at 41 South Martin, Waukegan, since 1977 with his wife, his son Marcus, and his stepson Donald, who was in the Air Force. In late 1977 or the beginning of 1978, there was construction work where North Shore was looking for a gas leak, and after they were finished digging, they refilled it with the same dirt and then put some kind of pavement on it. About six months later, the sidewalk started breaking down. Plaintiff said that when the sidewalk started to settle or depress and crack, he called North Shore, but no one came. According to plaintiff's testimony, he waited about a week and called the city, explained the situation, and told them his name and address, and they said they would notify the superintendent, but no one responded. A week or so later, he called again, and again nobody came out.
Plaintiff recalled that on April 14, 1981, he had worked from midnight until 8 a.m. as a jailor in the Lake County sheriff's office. When he got home, he did some things in the backyard and then went into his small office next to his garage and looked at drivers' education books because he worked in drivers' education part-time. He saw his gate open and, wondering where his little dog was, saw the dog was running out. He followed the dog across the lawn to the sidewalk, and, reaching the sidewalk, his right foot tripped on the crack and he fell on his left leg, breaking his left ankle. He stated that when he tripped, he was looking where his dog was going. As he was trying to get up, his stepson Derwin Fermaint happened to come by, got out of the car, and pulled him inside the house. An ambulance took him to Victory Hospital, where he remained from April 14 until April 30, and was treated by Dr. Fetter and Dr. Soriano. He was not able to work while he was in the cast, and after the last cast was removed, he was on crutches for a long time. On September 9 or 10, 1981, Dr. Fetter allowed him to go back to work, but said he could do only light-duty work. After awhile he had a number of pains, and the pins started getting loose. He had the pins removed on September 10, 1982, and at the same time had a hernia operation, which had nothing to do with the original accident. Before the operation, he had been dismissed from his job over a disagreement with the sheriff. After the operation, he had therapy, had to wear high-heeled boots, and could return to work in January 1983 with restrictions. Plaintiff stated that his ankle is numb, unstable and does not have all its strength. Plaintiff further stated that bills, identified as plaintiff's group exhibit No. 5, all resulted from the accident of April 14, 1981, and all were paid except for less than $300 to Dr. Fetter and $14 to the hospital.
The city objected to the admission of the bills on the basis of improper foundation, contending the individual bills should be submitted one at a time and testified to so there would be a proper foundation for each one. The trial court admitted the exhibit, stating that sufficient foundation had been laid and that the city could cross-examine as to each one separately, although the city chose not to do so.
Robert Johnson, called as an adverse witness, testified that he was the director of public works for the city of Waukegan, which included the position of superintendent of the streets department. The streets department handles minor maintenance of sidewalks, and the engineering department is responsible for major reconstruction. When someone calls and complains, Vernette Hellstrom, the secretary, prepares a request report form, forwards it to him, and he forwards it to a foreman to go out and inspect. There are also sidewalk inspection request forms that are forwarded to the engineering department. The streets department does not keep these in its files, and it has no follow-up as to whether the engineering department acted. Vernette Hellstrom substantiated Johnson's testimony.
Plaintiff was recalled and stated that he generally made $1,000 to $1,500 per year working part-time for Cosmopolitan Driving School, but because he was unable to work between April 14 and September 1981, he made about $500 in 1981.
Ramona Barreto, plaintiff's wife, testified that the sidewalk was level when they moved in in 1977. In the fall of 1977, the gas company did repair work, but when they were done with the repair work, they did not put enough ground there, and when it rained, the sidewalk started going down and cracked. Her son, Daniel, complained to the city of Waukegan regarding the broken-up sidewalk in 1979, but nothing happened to the sidewalk. As for her husband's condition, she stated that sometimes he limps and his ankle swells and is discolored.
Derwin Fermaint, another of plaintiff's stepsons, testified that around noon on April 14, 1981, as he pulled up to his parents' home, he saw his stepfather lying on the sidewalk. He helped his stepfather get up and into the house and observed plaintiff had some deformity to his ankle and there was an abrasion from which he was bleeding. Fermaint called an ambulance, and plaintiff was transported to the hospital. Fermaint said that since the accident, plaintiff does not walk straight or as normally as he used to, he seems to wobble, complains of a lot of pain, and has to wear certain boots to give the ankle strength. Fermaint testified that plaintiff is at home more now rather than out and walking.
John Paul Lewis, who lives at 43 South Martin, testified that the sidewalk in front of the Barreto home was in poor repair, and that he had stumbled over it once or twice but did not fall. As plaintiff's counsel began to ask about differences in plaintiff, the city objected, arguing the line of questioning was repetitive in that plaintiff, his wife, and his stepson had testified. Plaintiff's counsel responded that the others were relatives and Lewis was a neighbor, and the objection was overruled. Lewis continued with his testimony, stating that plaintiff used to be rather active around the yard, but he did not see much of him out in his yard any more and that plaintiff used to go out in the winter and shovel snow, take care of his yard, and work in his garage, and Lewis did not see much of that anymore.
Alvernia May Beskow, secretary to the sheriff of Lake County, testified that she was keeper of the records as far as personnel and that during the 1981 period, plaintiff was paid $618.72 every two weeks, but was not paid between April 14, 1981, and September 10, 1981.
Dr. Marvin R. Fetter, an orthopedic surgeon, testified that he saw plaintiff in the emergency room on April 14, 1981, at Victory Memorial Hospital, where a history was taken, a physical examination conducted, and treatment rendered. Dr. Fetter realigned the bone, and a long leg cast was applied. Displacement of the inner bone of the ankle persisted, and subsequently cuts were made over the fracture site and the bones were put together and secured with pins, plates, and screws. Plaintiff was re-hospitalized in September 1982 to remove the retained orthopedic hardware in his ankle. Plaintiff was in the hospital for nine days, and the normal hospitalization period is five to 14 days. During the hospitalization of September 1982, plaintiff also had a hernia operation. Charges on the September 1982 hospital bill were all related to the treatment he rendered plaintiff for his ankle. During an examination of plaintiff in January 1983, Dr. Fetter found that there was a diminution of range of motion and the bone surface of the bone just above the ankle was not smooth, which is compatible with arthritic change, and advised plaintiff to perform no job requiring climbing. Dr. Fetter did not believe the range of motion would improve, and believed plaintiff may have intermittent pain and swelling, which may vary in intensity. On cross-examination, Dr. Fetter was unable to break down which part of the September 1982 hospital bill was for the hernia and which was for the orthopedic services.
The only evidence presented by the city was the testimony of plaintiff, called as an adverse witness. Plaintiff stated that on an application to get a job with the city as an inspector on January 10, 1983, he answered no to the question whether he had any physical or mental condition which might prevent him from performing the duties of the position. Under examination by his own counsel, plaintiff explained that he answered no on the application because when ...