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Martinkovic v. City of Aurora

OPINION FILED DECEMBER 15, 1986.

MARY MARTINKOVIC, PLAINTIFF-APPELLEE,

v.

THE CITY OF AURORA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After a jury trial plaintiff, Mary Martinkovic, was awarded $22,500 as damages for injuries resulting from her fall on a sidewalk located in the city of Aurora. Defendant appeals, contending the trial court erred in failing to direct a verdict in its favor.

On November 6, 1983, plaintiff was walking on a sidewalk in Aurora when she fell and injured her left elbow. She subsequently commenced this action against defendant, alleging that her injury resulted from defendant's failure to properly maintain its sidewalks.

At trial James Nanninga, director of public works for the city of Aurora, testified that the city operated under the "one-inch" rule, which stated that a sidewalk with a defect of more than one inch in length or depth would be considered unsafe and promptly repaired. He testified that there are approximately 500 miles of sidewalks in Aurora and that there is no daily inspection for damage. He stated that the city's system for finding defective sidewalks utilized the police department, street department workers, the city engineering staff and citizen complaints.

Gene Hawking, an engineering technician, testified that he was responsible for determining whether sidewalk and street repairs were necessary based on the one-inch rule. He stated that he went to the area in question and found two defects that required repair.

Plaintiff's exhibit No. 5, which was introduced into evidence, was a photograph allegedly depicting the spot plaintiff fell. The photograph showed a section of sidewalk which gradually sank below the slab adjoining it, from a slight discrepancy on the left edge to its point of greatest inequality on the right edge. A 1 3/8-inches-wide ruler, which was laid against the right side of the sidewalk, indicated the discrepancy between the two slabs of concrete was slightly greater than 1 3/8 inches at the right edge.

John D. German testified that plaintiff's exhibit No. 5 depicted a sidewalk located near his house which had been defective since at least 1981. He stated that on November 6, 1983, he and his wife were walking their dog on the sidewalk, and that there were leaves on the ground and sidewalk. They passed plaintiff on the sidewalk and he then heard a rustling noise and did not see plaintiff. German returned to the scene and found that plaintiff had injured her arm. When asked where he found plaintiff, he stated,

"A. The side — the sidewalk.

Q. And can you identify on the photograph where approximately you saw her?

A. Somewhere in this area (indicating).

Q. All right. Which would be to the right?

A. Right, to the right."

Plaintiff, who was 62 at the time of the accident, testified that on November 6, 1983, the weather was nice and there were leaves on the ground. She stated she tripped on the "crooked sidewalk," which was covered with leaves. She did not identify exhibit No. 5 or indicate that the sidewalk depicted in the photograph was the sidewalk she tripped over. Plaintiff later had surgery performed on her elbow and testified that it still caused her pain and was not as strong as it had been.

At the close of plaintiff's case, defendant moved for a directed verdict, which was denied, and defendant rested without calling any witnesses. During deliberations, the jury sent a note to the trial judge, stating, "[N]eed testimony of Plaintiff for more information." The court instructed the jury that it had already received the complete testimony of plaintiff. After ...


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