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09/14/88 William Altszyler, v. Horizon House Condominium

September 14, 1988

WILLIAM ALTSZYLER, PLAINTIFF-APPELLEE

v.

HORIZON HOUSE CONDOMINIUM ASSOCIATION ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

529 N.E.2d 704, 175 Ill. App. 3d 93, 124 Ill. Dec. 723 1988.IL.1375

Appeal from the Circuit Court of Cook County; the Hon. Dean M. Trafelet, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

This is a personal injury action brought by plaintiff, William Altszyler, against defendants Horizon House Condominium Association (Association), Arthur Rubloff & Company (Rubloff), and the City of Chicago (City). The action charges defendants with negligence. The Association and Rubloff are appealing from a judgment entered upon a jury verdict against them and in favor of plaintiff. The amount of the verdict was $943,129.93, which was reduced to $801,660.44 to reflect the jury's finding that plaintiff was 15% negligent. A directed verdict and judgment was entered in favor of the City, from which no appeal has been taken. We affirm the judgment against the Association and Rubloff.

On May 11, 1977, at approximately 5 p.m., plaintiff, age 29, was riding a 10-speed bicycle northbound on the sidewalk on the east side of the 5700 North block of Sheridan Road. He was riding at a leisurely pace, seated on the bicycle and leaning forward with both hands holding the handlebars. When the bicycle went over a grade differential in the sidewalk, the front wheel disengaged and the bike collapsed. Plaintiff was thrust forward over the handlebars and hit his head on the sidewalk, causing him to be seriously injured.

A motorist, Gary Leahy (Leahy), and his wife, witnessed the occurrence. Leahy stopped his auto, and he and his wife ran over to help plaintiff, who was lying on the sidewalk. An ambulance was called and plaintiff was taken to a hospital. He suffered brain trauma from the occurrence and has no recollection of anything that happened on May 11, 1977. Leahy testified how the occurrence took place.

The grade differential in the sidewalk is the result of a height difference of about three inches between two concrete sidewalk slabs. The east side of the higher sidewalk slab abuts a 3 1/2- to 4-foot-high concrete retaining wall that is on the property of the Horizon House. The Horizon House is a 32-story condominium building located at 5733 North Sheridan Road. The Horizon House is owned by the Association and is managed by Rubloff.

The Horizon House building is set back approximately 200 feet from the east side of Sheridan Road. The building's parking lot is in front of the building and is enclosed by the 3 1/2- to 4-foot-high concrete retaining wall which abuts the sidewalk on Sheridan Road. The sidewalk runs about 237 feet from the south end to the north end of the Horizon House property line. The concrete retaining wall runs north and south parallel to the sidewalk and stops short 4.68 inches south of the north end of the Horizon House property line. It then runs west and east, perpendicular to the sidewalk on Sheridan Road, along the north side of the parking lot.

When Horizon House was built in 1966, an old house was located at 5747 North Sheridan Road, which is the property immediately north of the Horizon House. The old house was set on land which "rose three feet or more" from the sidewalk and was separated from the sidewalk by a concrete retaining wall which was about 1 1/2 feet high. Although the old house had been razed and the vacant property was being used for parking at the time of plaintiff's accident, the concrete retaining wall remained.

John Fritsch was employed by Rubloff as a janitor in charge of maintenance at the Horizon House from March 1, 1966, until 1982. He was employed as the head janitor at Horizon House in 1966 when the Horizon House and the sidewalk in front of the building were built. According to Fritsch, after the Horizon House was built, the sidewalk slab immediately north of the north end of the Horizon House property line began to shift and sink, creating a depression or difference in height of about three inches between that sidewalk slab and the sidewalk slab at the north end of the Horizon House property line. The north end of the higher sidewalk slab was in line with the north end of the Horizon House property line. The south end of the lower sidewalk slab was in line with the south end of the property line for 5747 North Sheridan Road.

Fritsch stated that the deterioration in the grade of the sidewalk slabs was caused by weather which washed down from between the 3 1/2- to 4-foot concrete retaining wall that was built on the Horizon House property and the retaining wall at the edge of the property at 5747 North Sheridan Road. The water would accumulate on the sidewalk and wash away the dirt and sand supporting the sidewalk. This action caused the sidewalk slab next to the sidewalk slab at the north end of the Horizon House property line to sink. The sidewalk slab at the north end of the Horizon House property remained level. Fritsch attempted to correct the grade differential between the two sidewalk slabs by putting concrete in the space that had been created between the two slabs. However, when the water continued to drain on the sidewalk, the concrete cracked and the sidewalk slab continued to sink.

In the spring of 1977, Fritsch saw hundreds of bicyclists everyday riding up and down the sidewalk in front of Horizon House. The bicyclists would use the sidewalk on trips to and from the nearby beachfront park. Several witnesses testified that there was heavy traffic on Sheridan Road which necessitated the use of the sidewalk by bicyclists. Fritsch stated that he was aware that the ...


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