Appeal from the Circuit Court of Cook County, Honorable HOWARD M. MILLER, Judge Presiding.
As Corrected November 17, 1994. Released for Publication December 16, 1994. Petition for Leave to Appeal Denied February 1, 1995.
O'connor, Campbell, Buckley
The opinion of the court was delivered by: O'connor
Justice O'CONNOR delivered the opinion of the court:
On January 1, 1986, Judith Ide slipped on an ice covered walkway near her home in Evanston, Illinois. She suffered a broken wrist as a result and sued the defendants the City of Evanston and Harvey W. Server. A jury found that Evanston (40%) and Server (60%) were negligent in failing to barricade or otherwise protect her from the icy condition and awarded Ide $277,408.75 in damages less 12% for comparative negligence, amounting to a total award of 244,119.70. Evanston has appealed. *fn1
Judith Ide is a recreational jogger. Prior to her accident, she had been running regularly for many years. Ide and her sisters engaged in a regular running routine, which took Ide and her sister Sara from Ide's apartment at 700 Hinman Street in Evanston to sister Joe's apartment on the other side of Hinman Street in the 1000 block, a few blocks to the north. The three would run along Evanston's lake-front, travelling up to six miles a day, and eventually return to Joe's apartment. From there, Ide and Sara would retrace their steps, walking back to Ide's apartment, where they would part company.
On December 31, 1985, the weather was bitterly cold. The temperature was five degrees at 6:00 p.m. and ten degrees as the new year came in. At approximately 10:30 p.m., new year's eve, Evanston police officer Jon Birkenheier investigated a water leakage at the building located at 811 Chicago Avenue, one block west of the spot on Hinman Street where Ide fell. Birkenheier notified his dispatcher about the condition and told the dispatcher to notify the owner of the building, Server, and Evanston's water and fire departments.
At 10:51 p.m., Benjamin Phillips, then a fire engine company captain with the Evanston Fire Department, arrived and discovered a break in the water main at 811 Chicago Avenue. He called his dispatcher, requesting that notice be given to the building owner, the Evanston water department and the Evanston streets and sanitation department. Phillips examined the perimeter of the building and found that water was seeping from the building out into a parking lot behind the building. At the time, slush was forming in the parking lot.
Between 10:30 or 11:00 p.m., Jay Henderson, a master mechanic with the Evanston Water Department, received an emergency call about the leak. He arrived at 811 Chicago Avenue about 30 minutes later. He could hear water running inside the building. By 12:15 a.m., he had shut the water off.
At 3:00 a.m., Captain James McIntyre of the Evanston Fire Department, received a call that water was flowing from 811 Chicago Avenue into a rear ramp in the building at 800 Hinman Street. He went to the scene and discovered water had flowed from 811 Chicago Avenue, through the parking lot, around to the front entrance ramp of the 800 Hinman Street building and onto the sidewalk on Hinman Street. He saw that ice had formed on the entrance ramp to 800 Hinman Street.
At 3:30 a.m., Jay Henderson received a second emergency call and returned to the scene. Henderson saw that water was continuing to seep from the building. Henderson returned to the Water Department to obtain sand and barricades. He went back to 811 Chicago Avenue and built a three-inch high sand dike, surrounded by barricades, which diverted the water east from the south edge of that building into the alley and north toward the city sewer located in the alley. Proceeding to the front of the 800 Hinman Street building, Henderson encountered that building's maintenance man, who informed Henderson that the entrance ramp was icy. Henderson did not salt, sand, or barricade the sidewalk and entrance ramp at that time, nor did he provide any equipment to the building maintenance engineer so that he could do so. Before leaving, Henderson determined that the leakage inside 811 Chicago Avenue had stopped and that water was no longer flowing through the 800 Hinman Street building.
On January 1, 1986, Judith Ide's sisters were out of town. Nonetheless, in keeping with her routine, Ide decided to go running. Commencing around 10:00 or 10:30 a.m., she followed the regular route, as if she were with her sisters. Upon finishing her run, Ide found herself at her sister Joe's apartment. She was walking home on the 800 block of Hinman Street and noted that the sidewalk was free of ice and snow. However, when she approached the stretch of walkway north of 800 Hinman Street, she noticed that "there was ice everywhere." She decided to avoid walking on the ice. Instead she walked on the parkway in between the street and the sidewalk. This area was covered by more chunky ice and snow. Ide was aware that this area was usually not cleared of ice and snow in previous winters.
She traversed the parkway, starting from just north of the parking lot until the parkway met the entrance ramp of 800 Hinman Street. There she stopped because she saw ice on the driveway which went down to the base of the building. Ide decided that, rather than walking in the street, which was ice-free, she would attempt to cross the driveway to where it met the ice-free sidewalk on the other side. After taking two or three steps, she fell, cushioning her fall with her hands. These proceedings ensued.
The sole contention Evanston raises on appeal is that it owed no duty to Ide because the icy sidewalk was an open and obvious condition, appreciated by Ide, which, once ...