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Glass v. City of Chicago

June 01, 2001

MARGARET ANN GLASS, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 94 L 7057 Honorable Irwin J. Solganick, Judge Presiding

The opinion of the court was delivered by: Justice O'brien

Not Released For Publication

MARGARET ANN GLASS, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Cook County. No. 94 L 7057 Honorable Irwin J. Solganick, Judge Presiding

The opinion of the court was delivered by: Justice O'brien

Plaintiff, Margaret Ann Glass, appeals from a jury verdict in favor of defendant, the City of Chicago (the City), on her claim for personal injury damages sustained from a fall on a City sidewalk. Plaintiff asks this court to enter judgment notwithstanding the verdict and to order a new trial limited to the issue of damages. Alternatively, plaintiff asks this court to remand the case for a new trial.

 At trial, plaintiff testified that a hole in the sidewalk approximately eight inches wide by three feet long and approximately 2½ inches deep, located near the intersection of Wrightwood and Clark, caused her to trip and fall, resulting in injuries which aggravated a pre-existing medical condition. Further, plaintiff testified that after receiving treatment for her injuries at a hospital emergency room, she returned to the scene and photographed the hole. Plaintiff's photographs were admitted into evidence.

At trial, occurrence witness Ted Pawasarat testified that he was standing on Wrightwood facing Clark when he heard a commotion, that he turned toward the commotion and saw plaintiff sliding on the street. Occurrence witness Ted Dzendrowki similarly testified that he was driving near the corner of Wrightwood and Clark when he saw plaintiff fall at the hole in the sidewalk. Further, George Marinakis testified that he owned a building at the corner of Wrightwood and Clark and that approximately one year before plaintiff's accident he went to a City office and personally asked the City to repair the sidewalk. Marinakis added that following his initial request, he made four or five follow-up requests that the City repair the sidewalk. Plaintiff's physicians testified to the extent of her injuries and that the trauma of the injuries aggravated a pre-existing medical condition.

At the conclusion of her case in chief, plaintiff requested a directed verdict arguing over defendant's objection that the court could determine notice as a matter of law. The circuit court denied plaintiff's motion and the trial proceeded.

Jerome Eck, an accident reconstruction expert, testified on behalf of defendant that, based upon plaintiff's deposition, Pawasarat's deposition, and copies of the photographs taken by plaintiff, plaintiff could not have tripped and landed in the street without hitting Pawasarat in the course of her fall. In particular Eck based his opinion upon the deposition testimony of plaintiff and Pawasarat regarding their positions at the time of the fall and after the fall. According to Pawasarat's deposition testimony, plaintiff fell to his right, but according to Pawasarat's trial testimony, he was unsure whether plaintiff fell to his left or his right. Further, at trial, Pawasarat was unable to recall exactly where he was standing at the time of the accident and testified he may have been standing further south than he indicated in his deposition. At the conclusion of Pawasarat's trial testimony, plaintiff moved to strike Eck's expert testimony as lacking sufficient basis in fact. The circuit court refused to remove the testimony from the record, but allowed plaintiff to argue the matter to the jury.

Dr. David Shenker also testified on behalf of defendant that plaintiff's fall did not aggravate her pre-existing medical condition, but that subsequent flare-ups of symptoms fell within an established pattern. However, Dr. Shenker admitted on cross-examination that he had only treated 10 to 20 patients with plaintiff's condition in the course of his career.

Following the close of evidence, plaintiff again moved for a directed verdict on the issue of notice. The circuit court denied the motion.

At the jury instructions conference, plaintiff objected to defendant's proffered Illinois Pattern Jury Instruction, Civil, No. B120.09 (3d ed. 1995) (hereinafter IPI Civil 3d), because it imposed a duty only where the City should have anticipated that a person on the premises would not discover or realize the danger or would otherwise fail to protect himself against it, a duty standard different from that in the Local Governmental and Governmental Employees Tort Immunity Act (Governmental Tort Immunity Act) (745 ILCS 10/3-101 et seq. (West 1998)). Plaintiff tendered an amended version of IPI Civil 3d No. 20.01 and argued that this instruction, together with her other proffered jury instructions (specifically ...


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