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04/12/96 EUGENIO LOZADO v. CITY CHICAGO

April 12, 1996

EUGENIO LOZADO, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Edward G. Finnegan, Judge Presiding.

Presiding Justice McNULTY delivered the opinion of the court: Gordon and Hourihane, JJ., concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

Plaintiff Eugenio Lozado brought this negligence suit against defendant, the City of Chicago, for injuries he allegedly sustained when he fell on the sidewalk in front of 2307 West North Avenue in Chicago. The jury returned a verdict in favor of plaintiff and awarded plaintiff $245,000 damages, after reducing the verdict 10% for plaintiff's contributory negligence. Defendant filed a motion for a new trial, a new trial only on the issue of damages or a judgment notwithstanding the verdict. The trial court granted defendant's motion for a new trial on the basis that during closing argument, plaintiff's counsel improperly instructed the jury as to how to answer the special interrogatory. Plaintiff sought and was granted leave to appeal the trial court's order granting defendant a new trial. We affirm.

Pursuant to defendant's request, the jury received a special interrogatory in addition to the general verdict form. The special interrogatory asked, "Was the sidewalk in front of 2307 West North Avenue in a reasonably safe condition at the time of [plaintiff's] injury?"

During his closing argument, plaintiff's counsel referred to the special interrogatory by stating:

"Now there's that special interrogatory that [defense counsel] talked about, just mention it one more time.

In order for -- the Plaintiff has to prove three things, the first thing as I mentioned is the negligence of the City and you will be instructed that there is a statute that the City has a duty to maintain the sidewalk in a reasonably safe condition.

Now, if you find that the City did not maintain the sidewalk in a reasonably safe condition, he has proved that part of his case and he's going to be getting money from you and if you do find that to be consistent --

[DEFENSE COUNSEL]: Object as to proving part of the case meaning that he'll get money.

THE COURT: Well noted.

[PLAINTIFF'S COUNSEL]: And to be consistent if you believe that he has proved that part of the case, special interrogatory asks you was the sidewalk in front of 2307 West North Avenue in a reasonably safe condition at the time of [plaintiff's] injury answer to that has to be no to be consistent with your finding that he's getting money -- in the first place, doesn't get money unless he's met three burdens of proof.

So you have to -- you know, you should be consistent with that.

Answer was not in a reasonably safe condition the answer to that question is ...


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