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May 27, 1994


Appeal from the Circuit Court of Cook County. The Honorable Robert Boharic, Judge Presiding.

Released for Publication July 14, 1994.

Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The plaintiff, Theodoris Malek, was injured when she fell on the walk in front of her house. She sued the Bureau of Forestry of the City of Chicago (the City) for negligence. A jury found Malek and the City both 50% negligent; judgment for Malek was entered for 50% of her damages. The City now argues that Malek cannot recover 50% of her damages because the jury verdict shows that she did not exercise ordinary care.

Malek filed a complaint against the City on July 8, 1991, alleging that she was injured on February 27, 1991, when she fell on shrubbery debris left by the City on the walkway in front of her house. After a jury was unable to reach a verdict on Malek's third amended complaint, Malek filed her fourth amended complaint.

At a second trial, held in July and August, 1992, the jury received comparative negligence instructions. The City did not tender any contributory negligence instructions. The jury determined that Malek suffered $915,000 in damages. It also found that Malek's negligence was the proximate cause of 50% of her injuries. Therefore, Malek was awarded $457,500.

In its motion for either a new trial or a judgment notwithstanding the verdict, the City argued that Malek was barred from any recovery under the Tort Immunity Act because the jury's finding of liability showed Malek did not exercise ordinary care for her own safety. The Judge denied the motion.

On appeal, the City raises the same issue argued in its post-trial motion. It contends that, because the jury found that Malek was negligent, she is barred from recovery under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). (Ill. Rev. Stat. 1991, ch. 85, par. 3-102(a).) In section 3-102(a), the Tort Immunity Act provides:

"A local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property." (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 3-102(a).)

The City reads this portion of the Tort Immunity Act as including the law of contributory negligence.

Malek contends that the City waived this argument when it did not mention contributory negligence before filing the post-trial motion and when it tendered comparative negligence jury instructions. For several reasons, we agree.

The theory that contributory negligence applies to Tort Immunity Act claims was first raised years before the complaint was filed in this case. Thus, we agree with Malek that the City has no excuse for not noting it earlier in the trial court. In 1985, the Third District Illinois Appellate Court addressed the argument raised by the City in this case, and held that comparative negligence principles apply to the Tort Immunity Act. ( Palladini v. City of East Peoria (1985), 134 Ill. App. 3d 345, 480 N.E.2d 530, 89 Ill. Dec. 345.) Before Malek filed her first, second, third, and fourth amended complaints, and thus beforethe City had to answer these complaints, the First District Appellate Court held that contributory negligence principles apply under the Tort Immunity Act. ( Thompson v. County of Cook (1991), 222 Ill. App. 3d 459, 584 N.E.2d 170, 164 Ill. Dec. 958.) Thompson was later appealed to the supreme court, which affirmed the appellate court on other grounds. ( Thompson v. County of Cook (1993), 154 Ill. 2d 374, 381, 609 N.E.2d 290, 181 Ill. Dec. 922.) Nonetheless, it is clear that the City had notice of the possible applicability of contributory negligence to this case long before it filed its post-trial motion.

The City asserts that it could not have raised this issue until after the jury returned a verdict showing that the plaintiff did not exercise reasonable care and contends that any tendered contributory negligence instructions would have been refused by the trial Judge. This argument is contrary to Illinois pleading and trial practice. A trial Judge may consider legal arguments about the law possibly applicable to a case before a jury finds the specific facts of that case. Moreover, cases relied on by the City in this court hold that contributory negligence instructions are required before contributory negligence principles may be applied under the Wrongful Death Act. ( Haist v. Wei Wu (1992), 235 Ill. App. 3d 799, 811, 601 N.E.2d 927, 176 Ill. Dec. 229; Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 97-98, 476 ...

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