Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ramirez v. City Of Chicago

December 07, 2000

BELEN RAMIREZ, PLAINTIFF-APPELLEE,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT



Appeal from the Circuit Court of Cook County. Honorable Ronald J.P. Banks, Judge Presiding.

The opinion of the court was delivered by: Justice Hoffman

Not Released For Publication

BELEN RAMIREZ, PLAINTIFF-APPELLEE,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT

Appeal from the Circuit Court of Cook County. Honorable Ronald J.P. Banks, Judge Presiding.

The opinion of the court was delivered by: Justice Hoffman

The defendant, City of Chicago, appeals from a $234,227 judgment entered on a jury verdict in favor of the plaintiff, Belen Ramirez, in the instant negligence action. The defendant contends that the trial court erred in directing a verdict on the issue of constructive notice, that it erred in allowing certain medical testimony, and that numerous improper remarks made by the plaintiff's counsel during closing arguments entitle it to a new trial. For the reasons which follow, we affirm the trial court's judgment as to the issue of liability, reverse as to the issue of damages, and remand for a new trial as to damages only.

 On September 25, 1993, the plaintiff and her husband went to Dr. Fernando Cinta's office, located at 2012 South Ashland Avenue in Chicago. As the plaintiff was walking from their car to Dr. Cinta's office, she fell and injured her knee. The plaintiff sustained a knee fracture and subsequently underwent surgery and physical therapy. On September 7, 1994, the plaintiff and her husband filed a two count complaint against the defendant. In count I, the plaintiff sought damages for her injury, alleging that the defendant had negligently maintained the sidewalk on which she fell. In count II, her husband, Felipe Ramirez, sought damages for loss of consortium. On October 20, 1998, the trial court entered an order stating: "Felipe Ramirez is dismissed with prejudice. The case shall continue as to Belen Ramirez." Also on that date, the trial court entered an order declaring a mistrial in the first trial of this case, citing as the reason that the plaintiff had presented certain evidence in violation of a court order. The evidence at the second trial was as follows.

The plaintiff and her husband both testified with the assistance of an interpreter. Mr. Ramirez testified that he did not see his wife fall. After the fall, when he asked her what had happened, she responded "I tripped and I fell." At the emergency room, Mr. Ramirez spoke, in English, to a receptionist, telling her that his wife had slipped and fallen. He testified that, at that time, he did not know the difference between the English words "slip" and "trip." He further testified he had never had any formal training in the English language, but later acknowledged that he reads newspapers printed in English and sometimes speaks English at work. Mr. Ramirez also testified that, following the accident, he went to the police station and filed a report. He told the police that his wife had tripped and fallen.

Mr. Ramirez testified that, although he usually parked in Dr. Cinta's parking lot, he had parked on the street before. On the occasions that he did so, he walked on the sidewalk to get to the doctor's office. When asked if, prior to his wife's accident, he had ever informed the defendant that there was a problem with the sidewalk, he responded "No, no. I did not have a reason to do so." Mr. Ramirez acknowledged that it was drizzling when his wife fell and that the sidewalk was wet.

The plaintiff testified that, as she walked toward Dr. Cinta's office carrying her six month old daughter, she tripped on the uneven sidewalk, fell to her knees, and laid down over her heels. When asked if she had slipped, the plaintiff answered: "Of course I slipped. After I tripped and after I lost my balance I was not able to hold myself up. Yes, I did slip and fall after I tripped." According to the plaintiff, when her husband asked her what happened, she told him that she tripped, she slipped, and she fell. The plaintiff testified that she thought it was wet on the day of her fall but that she could not remember too well.

The plaintiff further testified that she had been going to Dr. Cinta's office for 10 years, both for her own appointments and for those of her children. She never had any problem walking on any area of the sidewalk in front of Dr. Cinta's office. When asked if she had ever complained to anyone regarding the condition of the sidewalk prior to her fall, she responded: "No. Because I did not live in that neighborhood."

The evidence deposition of Dr. Fernando Cinta was read to the jury. Dr. Cinta was shown photographs of the sidewalk area just to the north of the entrance to his office. In the photograph, Dr. Cinta identified an area where the sidewalk was uneven, estimating the difference in elevation of the two sidewalk slabs as "[m]aybe a couple of inches." Dr. Cinta testified that the sidewalk was in that condition when he began his practice at that location in 1977.

Dr. Cinta testified that both an emergency room triage report and the emergency room doctor's report stated that the plaintiff slipped. He further testified that the physical therapists' initial report stated that the plaintiff slipped on a wet sidewalk.

After the plaintiff rested, the defendant presented the testimony of Carmen Santana, subpoena clerk for St. Mary's Hospital, in order to establish that the plaintiff's hospital records had been prepared in the ordinary course of business. The defendant then published the following medical records to the jury: the emergency room triage report, the emergency room doctor's report, and the physical therapists' initial evaluation, all of which were referred to in Dr. Cinta's testimony; and several reports of Dr. Farahvar, the doctor who performed the plaintiff's surgery, one of which states that the plaintiff reported having fallen on a wet sidewalk.

At the close of evidence, the trial court entered a directed verdict in the plaintiff's favor on the question of whether the defendant had constructive notice of the condition of the sidewalk. The jury returned a verdict in favor of the plaintiff and awarded her $234,227, allocated as follows: $143,300 for past pain and suffering, $67,500 for loss of normal life, $4,000 for disfigurement, and $19,427 for medical expenses. The trial court entered judgment on the verdict. Following the trial court's denial of its motion for a new trial, the defendant filed the instant appeal.

The defendant first argues that the trial court erred in granting a directed verdict in the plaintiff's favor with respect to the issue of notice. It is well-settled that the trial court should enter a directed verdict only if "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). This is also the standard which we apply in reviewing the trial court's ruling on a motion for directed verdict. Asplund v. Silica Sand Transport, Inc., 254 Ill. App. 3d 593, 597, 627 N.E.2d 117 (1993).

As to liability for injuries on the property of a local public entity, such as the defendant, section 3-102 of the Local Government and Governmental Tort Immunity Act provides, inter alia, that a local public entity "shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102 (West 1998)). The plaintiff presented no evidence that the defendant had actual notice of the uneven condition of the sidewalk on which she fell. Consequently, we must determine whether there was any triable issue of fact on the question of the defendant's constructive notice of the defect in its sidewalk upon which the plaintiff tripped.

Although the question of whether constructive notice exists is normally one of fact, it becomes a question of law which may be determined by the court if all of the evidence, when viewed in the light most favorable to the defendant public entity, so overwhelmingly favors the plaintiff that no contrary verdict could stand. Pinto v. DeMunnick, 168 Ill. App. 3d 771, 774, 523 N.E.2d 47 (1988). Constructive notice of a condition is said to exist where the condition has existed for such a length of time or is so conspicuous or plainly visible that the public entity should have known of its existence by exercising reasonable care and diligence. C.D.L., Inc. v. East Dundee Fire Protection District, 252 Ill. App. 3d 835, 844, 624 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.