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02/01/88 Fernando Hinojosa, A Minor v. the City of Chicago

February 1, 1988

FERNANDO HINOJOSA, A MINOR BY HIS MOTHER AND NEXT FRIEND, ELSIE HINOJOSA, PLAINTIFF-APPELLEE

v.

THE CITY OF CHICAGO HEIGHTS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

519 N.E.2d 976, 166 Ill. App. 3d 319, 116 Ill. Dec. 761 1988.IL.110

Appeal from the Circuit Court of Cook County; the Hon. John M. Breen, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This is an appeal from a jury verdict in favor of plaintiff, Fernando Hinojosa, in the amount of $340,113.67 for personal injuries incurred on residential property owned by the City of Chicago Heights (the city). Defendant city raises the following issues on appeal: (1) whether plaintiff failed to plead or prove a cause of action for negligence; (2) whether the plaintiff failed to establish that any act or omission of the defendant was a proximate cause of the injury; (3) whether plaintiff can recover under a cause of action for nuisance; and (4) whether the trial court erred in permitting the jury to consider evidence regarding the condition of the accident site. We reverse.

The original complaint alleged that the city had negligently permitted the minor plaintiff to enter upon the defendant's property where he was injured when another child, Guillermina Del Horno, rubbed a caustic substance into plaintiff's eyes. Plaintiff subsequently added a second count, alleging that the condition on the premises violated the city's municipal code, thus constituting a nuisance. Defendant filed motions for summary judgment and to dismiss count II of the amended complaint, both of which were denied.

At trial, Guillermina Del Horno testified that she was six years old at the time of the incident and that she and plaintiff had entered the basement of the building at 198 East 22nd Street (the 198 East house) to play. She stated that she had not been in the house before that day and did not know if other children had ever played there before. When she and plaintiff went into the house, the door was open and they were able to walk right in. She testified that the basement was not clean and that there were some cans on the floor. She found a can which she though contained soap, emptied some of the contents into her hand, and put it into plaintiff's eyes. She testified that plaintiff's exhibit 65, a can of Easy Off oven cleaner, looked like the can she had found in the basement.

Ruben Del Horno, Guillermina's four-year-old brother, corroborated his sister's testimony regarding the condition of the house. He also identified plaintiff's exhibit 65 as being similar to the can involved in the incident.

An ophthalmologist Dr. Lawrence Chapman, testified that he saw and treated plaintiff on the day of the incident. He stated that upon examining plaintiff, he observed severe burns on plaintiff's right eye and moderately severe burns on plaintiff's left eye. He testified that the burns were consistent with an injury caused by lye and that Easy Off contains sodium hydroxide, which is lye.

Roberto Sanchez, who lived two buildings away from the 198 East house, identified a photograph of the house in question as it looked on April 6, 1981, the date of the incident. He stated that he had gone into the house after his wife told him about plaintiff's injury. The photographs showed that trash was piled in the garage and first-floor apartment of the building and that the windows in the front of the house had been broken out. Mr. Sanchez also stated that the city had posted a notice on the door of the house.

On cross-examination, Mr. Sanchez admitted that he did not know when the photographs had been taken or whether the condition of the premises had changed between the time he went into the apartment and the time the photographs were taken. He did not go into the basement and did not see what was there. He did not see any substances resembling Easy Off and he had never seen children in the building.

Deborah Medina, who lived across the alley from the 198 East house, testified that she had called the city four or five times about the condition of the garage and had reported that children were playing in the garage prior to plaintiff's injury. Her complaints related solely to the garage, and stated that she could not see the residential building at 198 East 22nd Street.

Joseph Ignelzi, a housing code enforcement officer employed by the city, testified that the city purchased the 198 East house approximately nine months prior to plaintiff's injury. He stated that although city records on the premises did not show any visits made by city personnel to inspect the premises prior to the date of the incident, his department had been out to the property in March 1981 to post a notice requiring the ...


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