Appeal from the Circuit Court of Cook County. No. 97 L 3672 Honorable Allen Freeman, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Plaintiff, Mildred Rios, brought suit against defendant, the City of Chicago (The City), for injuries she sustained when she slipped and fell on ice which accumulated on an alley return located in Chicago. The jury returned a verdict in favor of defendant. On appeal, plaintiff contends that she was entitled to a judgment notwithstanding the verdict. Alternatively, she argues that the trial court erred in allowing the jury to hear inadmissible evidence for which no limiting instruction was given, and erred in refusing plaintiff's jury instructions regarding unnatural accumulation and disfigurement. For the following reasons, we reverse the judgment of the circuit court and remand for a new trial.
Plaintiff testified that on March 23, 1992, she was on her way to work, walking north on the sidewalk along Halsted Street toward the intersection of Halsted, Fullerton, and Lincoln Avenue in Chicago. The sidewalk was clear and there was salt on the ground. At one point, the sidewalk stopped at the entrance to an alley and resumed on the other side of the entrance. Crossing the alley in place of the sidewalk was an "alley return" - a concrete surface spanning the entrance to the alley that was sloped toward the intersecting street. When plaintiff came upon the alley, she looked to her right to check for cars. As she was looking for cars, she took one or two steps into the alley and slipped and fell. She heard a loud crack in her right arm. After she fell she looked on the ground to see what caused her to fall. She stated that she saw broken cement with ice on top of it "right where she fell." Based upon photographs introduced at trial, she described the area in which she fell as being towards the middle of the alley. The photographs depict her pointing to the area with the broken concrete. She further testified that Donna Seltin had been walking behind her, helped her to her feet, and took her to the hospital. She was treated for a dislocated and fractured elbow, which ultimately required surgery. On cross-examination, she testified that before she fell, she never noticed anything unusual about the sidewalk or alley return where she fell.
Herbert Miller testified as plaintiff's structural engineering expert. He testified that naturally occuring weather conditions caused the concrete to "spall" or break up because the concrete naturally absorbs water. When the water freezes, it expands and the concrete surface gets pushed off by the expansion of the ice, creating a pock-marked or broken area. The spalled condition took several years to develop. He also noticed signs that somebody at some time had cut an area of the concrete and patched it. When asked whether the spalled condition caused an unnatural accumulation of ice to develop, Miller stated that the water came from a natural source, either from rain or melted snow, and that the slope of the alley return would normally allow for a proper run-off of that water. However, the spalling acted as a reservoir for the water to collect and freeze on the slope and created a dangerous condition. Miller reviewed the photographs, the weather report, and the depositions of plaintiff and Kenneth Rigan, the general superintendent of the bureau of streets for the City of Chicago. Miller further testified that prior to rendering his opinions he did not believe that he reviewed the deposition testimony of Donna Seltin. He was not aware that Seltin had testified that on the date of the accident she was walking behind plaintiff and that a sheet of ice covered the street and sidewalk. The highest temperature on the day of the accident was 31 degrees, after a low of 17 degrees the previous night. Ten inches of snow had fallen during the two previous days.
Kenneth Rigan testified that as part of his duties, he was responsible for the maintenance of the sidewalks and alley returns in the City. He agreed that one purpose of an alley return is to allow water to flow to the gutters into the catch basins or sewers, and that the alley is angled so that water does not collect on the return. He also agreed that if the alley return becomes broken or pock-marked, water could pool in those areas. He also testified that the concrete surface plaintiff points to in the photographs was likely laid to cover a trench that had been dug and refilled by a utility company. It appeared to Rigan that workers employed by the company most likely dug the trench, refilled it, and laid the concrete surface. He admitted, however, that the City had control over the alley return where plaintiff fell.
Steven Zebich testified as defendant's structural engineering expert. He stated that he was also trained in meteorology. In formulating his opinions, he reviewed the complaint, the depositions of plaintiff, Rigan, Seltin, and Miller, a series of photographs, weather data, and also reviewed an inspection report of the site. He testified that based upon the information provided by Rigan, and the site inspection, the condition of the concrete where plaintiff alleged she fell was probably related to the trench work done by the utility company. Additionally, he stated that the deterioration in the concrete was a result of normal long-term freeze-thaw action, which can cause parts of the surface to crack and spall over time. In his opinion, the ice that developed on the concrete was due to a natural accumulation. His opinion was based upon various factors identified by his company: (1) whether there is a source for creating an unnatural accumulation of ice; (2) whether there is a potential for discharge of water from that source to create an unnatural accumulation; and (3) whether the topography around the area supports drainage from the source to the point of alleged accumulation. He explained that a source of an unnatural accumulation of ice is "a man-made object, a structure, some kind of thing that's built * * * that would channel quantities of water onto a spot in excess of common ground flow." He further explained that simply because water puddles on a man-made surface does not mean that it is there unnaturally; it is a normal, expected collection of water along a common ground surface.
Zebich also testified that based upon the testimony of Seltin and the weather data, it was his opinion that the location where plaintiff states she fell was covered with ground surface ice or "black ice." He stated that Seltin's testimony aided him in formulating his opinion because she testified in her deposition that it was actively sleeting, that there was ice everywhere, that she was walking on the snow and that it was crunching. However, he also relied upon the weather information available from the Chicago Botanical Garden, the University of Chicago, and O'Hare Airport. That information disclosed that on the day of the accident, there was no reported precipitation. However, two days prior, there was a total accumulation reported of 10 inches of snow. In addition to that, fog, rain, blowing snow, or drizzle was occurring, and the relative humidities at all the locations were high, which meant that the air was very moist. Temperatures fluctuated above and below freezing. This combination created a classic situation for creating fog, and ground surface icing conditions, including on sloped surfaces. Accordingly, based upon the porous nature of concrete and the weather conditions, it was his opinion that water could have collected throughout the entire alley return. Zebich did not personally inspect the area where plaintiff fell. He agreed that, generally, the alley return was designed for safety purposes to prevent large quantities of water from remaining there and freezing.
Evidence was also introduced that the City had a hotline for handling city complaints. The City had not received any complaints of any defects in the alley way of 2300 North Halsted Street during the period beginning one year before the accident and ending one month after the accident. At the close of the evidence and after closing arguments, the jury was instructed on the law and was asked to answer four special interrogatories as follows:
(1) "Were the alley return and sidewalk where Plaintiff Mildred Rios alleges she fell in reasonably safe condition on March 23, 1992?"
(2) "Did the City of Chicago have actual or constructive notice of [a] condition that was not reasonably safe at the location where the Plaintiff Mildred Rios alleges she fell, on March 23, 1992, in sufficient time to have remedied the condition prior to the date of Plaintiff Mildred Rios' fall?"
(3) "Was the natural accumulation of ice or snow the sole proximate cause of Plaintiff Mildred Rios' injuries?"
(4) "Was the negligence of Mildred Rios greater than 50% of the total proximate cause of her injuries?"
The jury returned a general verdict for defendant, answered "yes" to the first and third special interrogatories, and "no" to the second and fourth special interrogatories. Plaintiff's posttrial motion for a judgment ...