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06/28/95 RICARDO HERNANDEZ v. CHICAGO PARK DISTRICT

June 28, 1995

RICARDO HERNANDEZ, PLAINTIFF-APPELLANT,
v.
CHICAGO PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Stephen A. Schiller, Judge Presiding.

Rehearing Denied September 5, 1995. As Modified on Denial of Rehearing September 6, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., Concurs. Tully, J., Dissents.

The opinion of the court was delivered by: Cerda

MODIFIED ON DENIAL OF REHEARING

The Honorable Justice CERDA delivered the opinion of the court:

On June 29, 1985, the plaintiff was injured during a softball game at Harrison Park, Chicago, Illinois. The plaintiff, filed suit against the defendant, Chicago Park District.

After the jury rendered a verdict in favor of plaintiff, Ricardo Hernandez, in his personal injury case, the trial court entered judgment in favor of defendant, Chicago Park District, after granting its motion for judgment notwithstanding the verdict. On appeal, plaintiff asserts that the trial court erred in overruling the jury's verdict. For the following reasons, we affirm.

Lawrence Reagan testified that he was employed by the Chicago Park District as a construction inspector. In October 1984, Landscape Contractors of Illinois began raising the grade and relocating the southwest ball field in Harrison Park. In preparation for the construction work, park district surveyors staked out home base, first base, and third base for the contractor. The stakes were driven in flush with the existing ground.

When the work was completed on May 3, 1985, Reagan inspected the diamond. Reagan did not remember seeing a stake at home base during the inspection. Furthermore, the punch list, which was a list of those things not in conformity with the contract, did not indicate that a stake was present at home base. If he had seen a stake sticking out of the ground, Reagan stated that he would have had it removed.

Juan Martinez, a Chicago Park District maintenance foreman, testified that he prepares and marks the field for ballgames. Because the truck will not fit in the area around home base, that area is not dragged, but cleaned by hand. After dragging the field to make sure that there is no debris, Hernandez and his crew marks the baseline with chalk. One of the crew members, Leo Manijak, who is a special laborer for the park district in Harrison Park, explained how he marks the baseline and then cleans and inspects the infield.

Both Martinez and Manijak testified that they were never told that there was a stake at home base and never saw one. If either ofthem had seen a stake, he would have taken it out so that no one would be injured.

John Miller, the production manager for Landscape Contractors of Illinois, testified that six to 12 of his crew members renovated four or five baseball diamonds and raised the grade at Harrison Park from the fall of 1984 until May 3, 1985. Miller coordinated his work with Reagan, but was not on the site at all times during the construction.

According to Miller, Reagan's crew surveyed the field and placed the one inch by one inch stakes at control points, including home base. Usually, the groundspeople pounded the stake into the ground and then painted fluorescent orange paint on the top of them so that they would be easier to see in the grass. The stake at home base was three-quarters of an inch above the ground when the construction began. If a clay/sand mixture was added to raise the grade level, that mixture would have covered the stake. At the final inspection, Miller did not remember seeing any stakes.

Victor Gomez, the park district's recreation supervisor in 1984 and 1985, testified that he supervised the ballgames, leagues, and other recreational activities at Harrison Park. Although he saw stakes painted orange on the end during the construction from 1984 until May 1985, he had no knowledge of a stake at home plate when the softball leagues started in May 1985. Before June 29, 1985, no ...


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