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08/30/95 NANCY E. KIEL AND ROY KIEL v. CITY GIRARD

August 30, 1995

NANCY E. KIEL AND ROY KIEL, PLAINTIFFS-APPELLEES,
v.
THE CITY OF GIRARD, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macoupin County. No. 91L51. Honorable Thomas P. Carmody, Judge Presiding.

As Corrected December 6, 1995.

Justices: Honorable Robert W. Cook, J., Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J., Concurring. Justice Cook delivered the opinion of the court:

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

On January 5, 1991, plaintiff Nancy Kiel was attempting to enter her automobile when she slipped and fell on some snow that had been plowed onto the curb during the City of Girard's (City) street- and sidewalk-clearing operations. Plaintiff and her husband, Roy Kiel, brought suit against the City to recover damages for personal injuries sustained by plaintiff as a result of her fall. A jury found that the City was negligent in creating an unnatural accumulation of snow and awarded plaintiff $77,068.84 in damages less 50% for plaintiff's comparative negligence, amounting to a total award of $38,534.42. The City appeals, contending that (1) it was entitled to judgment as a matter of law, (2) the jury was improperly instructed, and (3) the jury's verdict was against the manifest weight of the evidence. We reverse.

Evidence at trial revealed that there was a snowstorm in Girard on the night of January 4, 1991. The following morning plaintiff and Roy drove to the City's business district to pay some bills. Plaintiff and Roy made three stops before going to the Ted Lay Real Estate Agency (Agency) to pay their rent.

Roy parked the automobile parallel to the curb in front of the Agency and plaintiff opened the passenger-side door to exit. Plaintiff noticed that, unlike the curbs at her three previous stops, the curb in front of the Agency had not been cleared of snow. Snow cleared from the sidewalk and the street had been piled over the curb. Various witnesses at trial estimated this pile as being anywhere from 3 to 12 inches deep and from 6 to 12 inches wide. Plaintiff crossed the pile by placing one foot in a footprint or depression in the snow, walked across the sidewalk, and entered the Agency. Roy waited in the car.

Plaintiff paid her rent and returned to the car. She realized that the snow was going to make it difficult to enter the car, so she placed one hand on the car to brace herself as she reached for the door handle. At that moment, she slipped and fractured her left tibia and ankle.

Ted Lay testified that earlier that morning the City had cleared the snow from the sidewalk in front of his office. City workers had pushed the snow off the sidewalk and onto the curb using a small tractor. Meanwhile, City snowplows had pushed snow from the street against the curb. Elsewhere in the City's business district the snow had been completely removed from the curb. However, in front of the Agency, snow from at least two previous snowfalls had been pushed against the curb and allowed to accumulate. Lay stated that later in the morning of January 5, 1991, City workers completely cleared the snow pile where plaintiff had fallen.

Ron Pierson, the City's street supervisor, and Mark Edwards, mayor of Girard, testified that it was City procedure to use tractors to push snow from the sidewalks of the business district. Snowplows would then collect the snow from curbside and deposit it in the park. Neither Pierson nor Edwards explained why the snow was not removed sooner from in front of the Agency. Edwards and Pierson testified that the City learned of plaintiff's fall approximately one week after it happened.

I. WAS THE CITY ENTITLED TO JUDGMENT AS A MATTER OF LAW?

On appeal, the City contends that it was entitled to judgment as a matter of law because (1) plaintiff was found by the jury to be contributorily negligent; (2) plaintiff's injuries were caused by the "effect" of weather conditions, not by any defect in the City's street or sidewalk; and (3) the City's failure to remove all the snow during its snow-removal efforts cannot form the basis for liability. We disagree.

The City's argument that a plaintiff's contributory negligence bars any recovery against a municipal defendant under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102(a) (West 1992)) has been recently considered and rejected by our supreme court. Wagner v. City of Chicago (1995), 166 Ill. 2d 144, 651 N.E.2d 1120, 209 Ill. Dec. 672.

The City next argues that section 3-105(a) of the Act (745 ILCS 10/3-105(a) (West 1992)) immunizes the City from the effects of snow and other forms of bad weather unless the weather damages or causes the deterioration of public ways, and the damage or deterioration proximately causes an accident. Because there was no evidence of any defect in the ...


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