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Thomas v. Town of Cicero

September 29, 1999

BEVERLY THOMAS,
PLAINTIFF-APPELLEE,
V.
TOWN OF CICERO,
DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. 98 L 207 HONORABLE PADDY McNAMARA, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Wolfson

Streets are for vehicles. Sidewalks and crosswalks are for pedestrians. But what about alleys? The plaintiff in this case walked in a Town of Cicero (Cicero) alley. She stepped into a crack and fell, injuring herself.

The question before us is whether Cicero intended that the plaintiff walk in the part of the alley where she fell. If it did not, the money damages judgment entered against Cicero cannot stand.

After examining where the plaintiff walked and why she walked there, we conclude she was not an intended user. For that reason, we vacate the jury's verdict in her favor and remand the cause to the trial court with directions to enter a judgment for the defendant notwithstanding the verdict.

FACTS

For her 58th birthday on September 9, 1997, Beverly Thomas (Beverly) planned to have lunch with her son. Driving by her next-door neighbor Bernice's garage sale on the way to lunch, Beverly, a self- confessed "garage sale fanatic," spied a canister vacuum cleaner. Beverly needed a vacuum cleaner, but hesitated to purchase this one from Bernice when she saw the $50 price. Her son offered to buy the vacuum cleaner for Beverly as a birthday present, and Beverly accepted.

When Beverly and her son returned from lunch, Beverly wanted to try her present "right away," but found the vacuum cleaner had "very poor suction." Beverly wanted her son to return it to Bernice, but her son was embarrassed and took the vacuum cleaner back to Bernice without an explanation. Beverly agreed to explain the vacuum cleaner's problems to Bernice later that afternoon.

After her son left, Beverly went through her backyard to put a bag of trash in her alley garbage can. Beverly then planned to use a shortcut down the alley, rather than the sidewalk in front of her house and around the corner, to get to Bernice's garage. After depositing her trash, Beverly turned, stepped toward the middle of the alley, walked a few feet down the alley, tripped, and fell on a crack near the middle of the alley, breaking every finger in her right hand.

Four months later, Beverly sued Cicero for negligently failing to maintain the alley.

At trial, Beverly testified September 9 was sunny, clear, and dry. Beverly said when she fell, she was looking straight ahead, contemplating her explanation to Bernice about the vacuum cleaner's return. Beverly had lived in her Cicero home since 1972, raising her seven children there. Beverly had noticed the crack in the alley for "a number of years," but never alerted Cicero, preferring to keep her complaints to herself and avoiding the crack as she walked down the alley.

Beverly's husband, Frank Thomas (Frank), testified he noticed the crack in August 1985 and reported it to Cicero officials. Frank acknowledged pedestrians regularly used the alley for "shortcuts and things."

Sam Jelic (Jelic), Cicero's Commissioner of Public Works, testified Cicero's alleys are "easements for people to get in their garages, utilities, electric, cable, garbage." Cicero does not maintain its alleys for pedestrians. Jelic said Cicero has alley inspectors who tour the town's alleys every two or three weeks, looking for cracks in need of repair. After examining photos of the crack where Beverly fell, Jelic agreed "it possibly needs to be patched ***."

The jury answered two special interrogatories. First, the jury found Beverly was "an intended and permitted user of the alley." Second, the jury found Cicero had "actual or constructive notice" of the crack where Beverly fell. The jury returned a verdict of $78,642, but decided Beverly was 45% negligent and awarded only $35,389. On March 10, 1999, the court entered judgment on this verdict, and on March 25, 1999, the court ...


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