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Prostran v. City of Chicago

June 11, 2004

[5] MILDRED PROSTRAN, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Cook County. Honorable David G. Lichtenstein, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'mara Frossard

[8]  In this personal injury case, plaintiff Mildred Prostran sued the City of Chicago (the City), alleging that she fell on a dug-up section of sidewalk and broke two bones in her left wrist. The City moved for summary judgment, arguing that it owed plaintiff no duty as the defect in the sidewalk was open and obvious and that it was immune from liability for failure to provide warning devices. The trial court granted the City's motion. On appeal, plaintiff contends that, due to her visual handicap, the defect of the sidewalk was not open and obvious and that the City should have anticipated that visually disabled people might not notice the condition, appreciate the risk, and avoid the area.

[9]  BACKGROUND

[10]   Plaintiff filed a complaint against the City, contending that she was injured due to the City's negligence. She asserted that the City owed her a duty to maintain its sidewalks and that the City had breached its duty by allowing rocks, dirt, and debris to accumulate on the sidewalk while it was under construction; by failing to barricade and protect the sidewalk while it was under construction; by failing to post any warning signs or cautionary devices in the area; and by failing to provide alternative means around the construction. Plaintiff sought $50,000 in damages.

[11]   At her deposition, plaintiff testified that about 8:50 a.m. on September 1, 1999, she was walking south on the sidewalk on the east side of North Oakley on her way to the bus stop at Addison and North Oakley. Her normal walking route to the bus stop was on North Oakley and she would "go that way practically every day." Part of her route crossed an alley at about 3615 North Oakley. Plaintiff testified that on the morning in question, when she was about four or five sidewalk squares from where the sidewalk crossed the alley, she "noticed that they were repairing the alley." Defense counsel asked the following questions:

[12]   "Q: Okay, what did you notice? What did you see exactly?

[13]   A: As I approached it, I saw that there was -- it was dug rather deep.

[14]   Q: And when you say dug, what was dug?

[15]   A: The space that was dug out was dug deep, and there was a lot of rocks in there and a lot of mud, a [m]ixture of rocks and mud.

[16]   Q: Was this visible to you when you were four- to-five squares away?

[17]   A: No. When I got close to it, I saw it better."

[18]   Plaintiff explained that the entire area of the alley between the two sections of sidewalk was dug up. She agreed that the dug-up area was about seven square feet in size, and that while the depth of the digging varied, with the area "higher toward the end and lower in the middle," the digging was about six inches deep. When asked whether she could see "this" as she approached the alley, plaintiff replied, "I saw it when I reached there, yes."

[19]   Plaintiff stated that she started to walk over the dug-up sidewalk. As she put one foot down, "all of a sudden [she] was sailing across the whole length of the dug up space." She explained that she took "one big step" before she fell, and she stated that a rock caused her to fall to the ground. Defense counsel asked plaintiff whether she was able to see the rocks before she started walking on them. Plaintiff replied, "I noticed the inside, there were a lot of rocks and debris inside. It was like caked mud. But I -- when I fell, I turned around and looked, that's when I saw the rocks." Later in the deposition, she reiterated, "I turned around and I looked -- I turned and looked to see what made me fall, that's when I saw the rock in the center and the one on each side, and the one in the center." In response to the question whether anything obstructed her view of these rocks as she started to walk in the dug up area, plaintiff stated, "There were sections inside of the dug out hole that were rough, and there were rocks in there." Plaintiff further testified that on the morning she fell, there were no barricades or warning signs around the dug-up area and no boards placed over it for pedestrians to walk on.

[20]   Defense counsel asked plaintiff whether anything prevented her from walking on the sidewalk on the west side of North Oakley, instead of the dug-up east side. Plaintiff answered, "You have to be extremely careful when you walk there. You have the alley coming this way and you have alley coming this way. The alley that comes this way, they come tearing out of there like crazy. The alley that goes this way, they come at a slow pace." Plaintiff also viewed photographs of the sidewalk. She stated that the photos did not accurately depict the way the area looked at the time she fell because the sidewalk had been paved.

[21]   Plaintiff testified that as a result of her fall, she suffered a cut to her big toe and two broken bones in her left wrist. Finally, plaintiff testified that she has been blind in her left eye for 38 years. In addition, she has a cataract and an astigmatism in her right eye. ...


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