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06/30/94 KENNETH FLIGELAMN v. CITY CHICAGO

June 30, 1994

KENNETH FLIGELAMN, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH CASCIATO, JUDGE PRESIDING.

Rehearing Denied August 12, 1994.

Murray, Gordon, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

The plaintiff, Kenneth Fligelman (Fligelman), a Chicago officer, appeals an order granting the defendant's motion for summary judgment.

The facts are not disputed and are as follows:

Fligelman is a detective in the Chicago police department auto theft section. On June 5, 1988, he was on-duty from 3:00 p.m. until 11:30 p.m. At 10 p.m. that evening Fligelman dropped his partner off in front of the headquarters building and proceeded to park his car in the parking lot, located in the 1200 block of South State Street. Walking back to the headquarters building, Fligelman passed under the Roosevelt Road bridge. As he was walking under the bridge, he noticed some pebbles falling in front of him. He then looked around, assuming someone was throwing stones at him. He took a couple more steps forward when some bigger pebbles fell. When he looked up, he noticed that a portion of the bridge (approximately 50-60 feet long by 10-12 feet wide) was quivering. More rocks fell, and Fligelman became frightened and started to run. As he started to run he was hit on the right upper arm and shoulder. Fligelman was thrown through the air and landed in a fire escape stairway. As a result of the incident, Fligelman suffered a linear fracture of the right arm, back pain and permanent numbness. He missed work for approximately five months due to these injuries.

On May 18, 1989, Fligelman filed his complaint against the City of Chicago (City) alleging that the City was negligent in regard to the Roosevelt Road bridge and as a result the overpass collapsed and material and debris fell upon him causing him great physical pain and injury.

On July 27, 1992, the City brought its motion for summary judgment. In its motion, the City argued that section 22-307 of the Pension Code (Ill. Rev. Stat. 1991, ch. 108 1/2, pars. 1-101 et. seq.) barred Fligelman's common law right to bring an action against the City.

On December 28, 1992, the trial court granted summary judgment in favor of the City.

The transcript of the hearing on the summary judgment motion discloses the following colloquy:

"THE COURT: * * * You want 304(a) language? I would do that also.

MR. BYRNE [defense counsel]: Yes, I would like.

THE COURT: If you want 304(a), you can't have leave to ...


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