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03/22/89 Bessie Lapidus, v. Union Oil Company of

March 22, 1989

BESSIE LAPIDUS, PLAINTIFF-APPELLANT

v.

UNION OIL COMPANY OF CALIFORNIA, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

536 N.E.2d 898, 181 Ill. App. 3d 116, 129 Ill. Dec. 848 1989.IL.383

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Bessie Lapidus appeals from an order of the trial court granting summary judgment in favor of defendant Union Oil Company of California in this premises liability action which alleges plaintiff sustained personal injuries when she fell while walking across a defect in the driveway of defendant's gas station.

The complaint alleges that on September 3, 1984, the 77-year-old plaintiff was "walking on or about the driveway" of defendant's Chicago gas station at a point where the driveway "crosses over [the] public sidewalk." Plaintiff was "caused to trip and forcibly fall to the pavement because of the presence of [a] cracked, uneven and depressed driveway" which was present due to defendant's negligence.

Defendant's answer admitted plaintiff had fallen, but denied the "fall was because of the presence of [a] cracked and uneven and depressed driveway." Defendant also filed an affirmative defense stating that the sole proximate causes of plaintiff's alleged injuries were that she "[failed] to keep a proper lookout for where she was walking" and "[failed] to notice cracks and depressions in the pavement which could or might have caused her to slip or trip."

On October 14, 1986, plaintiff completed sworn answers to interrogatories, which included the following information:

"INTERROGATORY: State in detail where you fell.

ANSWER: Driveway of defendant's gas station as it crosses over sidewalk area. INTERROGATORY: State in detail what caused you to fall.

ANSWER: Defective -- uneven."

Plaintiff was admitted to the hospital with a fractured nose, fractured foot, fractured rib, concussion, abrasions, and aggravation to disc disease and osteoporosis.

On December 2, 1986, defendant answered interrogatories indicating that Chicago police officer J. Holder was present at the scene immediately after the accident. Defendant also indicated that it had taken two photographs of the gas station premises in April 1986.

On September 17, 1987, plaintiff's deposition was taken by defendant. Plaintiff stated that at about 5 p.m. on September 3, 1984, she was walking to the park with her sister-in-law, who is now deceased, near the corner of Western and Pratt in Chicago. It was light outside and the weather was dry. She wore low-heeled shoes which were about two months old. They were walking slowly and she carried only a purse.

Interspersed throughout the deposition, plaintiff was asked about the fall itself. She could recall little about the precise details of the fall., Plaintiff stated that she saw a driveway.

"A. . . . [There] is a sidewalk there and a driveway. And the sidewalk, it wasn't even, between the sidewalk and the driveway.

Q. Did you fall on the sidewalk?

A. I fell forward, yes.

Q. But were you on the sidewalk when you fell?

A. I don't remember.

I was in shock. I really couldn't tell you.

I fell on the sidewalk near the driveway where ...


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