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Donald Martinelli and Annette Martinelli v. the City of Chicago.

April 25, 2013

DONALD MARTINELLI AND ANNETTE MARTINELLI,
PLAINTIFFS-APPELLEES,
v.
THE CITY OF CHICAGO. DEFENDANT-APPELLANT (SBC, N/K/A AT&T, )
INTERVENOR).



Appeal from the Circuit Court of Cook County. No. 06 L 11846 The Honorable Irwin J. Solganick Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Lavin

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Epstein and Pucinski concurred in the judgment and opinion.

OPINION

¶ 1 On a daily basis in the City of Chicago (City), there are numerous roadway construction projects that have an impact upon the safe flow of automobiles and pedestrians, as citizens, workers and visitors travel across its many streets. Maintenance of the City's vast and aging infrastructure is a never-ending process, with public and private employees often working together to erect, maintain or repair streets, bridges, viaducts and the like, along with sewer and water systems. This case reveals unfortunate consequences of poor planning and execution of such projects.

¶ 2 On February 2, 2002, plaintiff Donald Martinelli (Martinelli) and his co-worker, Raymond Santiago, worked for a telecommunications company and were assisting City workers who were involved in a somewhat mundane water department job on Milwaukee Avenue, near its intersection with Leavitt Street. During the morning construction work, the City had established certain safety provisions including barricades (in the form of large vehicles) and flagmen, but those protections were removed when City workers went on an extended lunch break, leaving the telecommunications workers in the largely unprotected workzone. During this time an admittedly distracted motorist, Oscar Soto, lost control of his vehicle, glanced off Santiago's truck and pinned Martinelli to the bumper of his truck, traumatically amputating his left leg above the knee. Martinelli and his wife sued the City for negligence in the manner and method that it conducted its construction work and the attendant safety considerations.*fn1 At trial, the jury was instructed to consider whether the City was negligent for (1) blocking the southeast bound lanes of traffic, forcing traffic to drive into the undivided northwest lane; (2) failing to erect a temporary traffic control zone with advanced warning in order to create an unambiguous path around the work zone; (3) failing to use flagmen and barricades; and (4) failing to create a buffer zone between workers and motorists. The jury returned a verdict of $6,952,000 for Martinelli's injuries and his wife's loss of consortium. The jury also answered in the negative a special interrogatory that sought to blame the distracted driver as being the "sole proximate cause" of Martinelli's injury. The City appeals, claiming, inter alia, that the trial court should have entered a judgment notwithstanding the verdict (judgment n.o.v.) because the distracted driver was the sole proximate cause of the accident and because the City should have been found to be immune for any failure to provide traffic control devices or warning signs. For the reasons that follow, we affirm.

¶ 3 BACKGROUND

¶ 4 Over the course of this week-long jury trial, the parties presented numerous witnesses. Plaintiffs testified on their own behalf as well as presenting the testimony of Santiago and Soto. Plaintiffs also presented medical testimony, expert testimony from a civil engineer, and the testimony of several employees of the City's water department, including Michael Dwyer, Neil Kelly and Donald Stewart. In addition, the City presented the testimony of an investigator from the Chicago police department, an expert in traffic crash reconstruction, and Sonia Kalfas, who witnessed the incident.

¶ 5 Milwaukee Avenue is a diagonal, arterial thoroughfare that runs in a northwest/southeast direction in the City. It intersects Leavitt Street in the City's Bucktown neighborhood, only a short distance from a viaduct at Bloomingdale Avenue. On February 2, 2002, the City was engaged in water department road work in this general area. Specifically, the City was attempting to perform a "cut and seal" job, a relatively common procedure in which a hole would be dug through the pavement, allowing access to water lines beneath the street, one of which was to be cut and sealed. Thereafter, the pavement would be repaired and the road restored to its previous condition. In virtually every such job, the City coordinates with the appropriate telecommunications or power company to make sure that the City's activities do not impair any lines or equipment maintained by those entities. Martinelli and Santiago worked for SBC and were engaged in marking locations for cables that were beneath the area where the work was to be undertaken. The City's seven-person crew from the water department consisted of a foreman, three laborers, a dump truck driver and a hoisting engineer. It was later augmented by another engineer who operated a ram hoe which was capable of cutting through the cobblestone which lay under the asphalt surface of the roadway.

¶ 6 There was conflicting testimony at trial regarding when Dwyer, the City foreman, arrived on the jobsite. According to Santiago, in the late morning, he and Martinelli were already in the process of identifying the location of cables (which would alert the City digger) when Dwyer arrived. Santiago said Dwyer gave him and Martinelli the specific area in which the City intended to do its work, which led them to finish their work. This work involved more than just painting on the asphalt road surface, however, as Martinelli had to go underground via a manhole to identify the specific location of the cables and send a radio signal to Santiago, who would mark the proverbial spot. Their SBC vehicles were nearby, with strobe lights operating. Martinelli and Santiago also put some orange traffic cones in the area where they were working and erected a temporary cage around the manhole in which Martinelli was working.

¶ 7 Dwyer's testimony regarding his arrival time at the Milwaukee jobsite was less than consistent. He testified that his worksheets indicated he and his crew were engaged in a job in the DePaul neighborhood, on Kenmore near Belden Avenue earlier that morning. His worksheets also indicated that his men took a lunch break at a fast food location at Wellington and Sheffield, but only after they had arrived at the Milwaukee jobsite. This restaurant, however, was located north of the Milwaukee job AND north of the Kenmore job. The crew's circumnavigation would have thus involved finishing up at Kenmore, driving south to the Milwaukee job, working briefly, and then driving back, past the Kenmore job, to arrive at the restaurant at Wellington and Sheffield. As for his own arrival at the Milwaukee site, Dwyer repeatedly testified that he did not remember being at the Milwaukee jobsite until after the accident had occurred, despite his worksheets' indication that he was there from 11:29 a.m. to 12:05 p.m. and despite the fact that Santiago testified that Dwyer was at the scene giving him information about the location of the water department's work well before the accident occurred. At one point, Dwyer even testified that he was unaware that the SBC employees were at the jobsite until he and his crew "pulled up and saw the fire truck and ambulance." In response to questions about the inconsistent entries in his records, Dwyer admitted that these were sometimes "fudged." Furthermore, despite several instances where Dwyer claimed a lack of recollection of events prior to the involved accident, as described infra, he acknowledged that his crew was involved in barricading and flagging the work area before lunch.

¶ 8 The City had acquired a permit to perform this work that required the City to use barricades and flagmen as needed. Dwyer testified that he would not have exposed his workers to any potential injury and that he made sure that the work site was safe in various ways, including the placement of large City vehicles as barriers to entering the viaduct in the southeast bound lane. He also testified that his laborers would have been on both sides of the viaduct to slow traffic as it approached the viaduct from both sides. In addition, Dwyer testified that as the City's foreman, he was supposed to ensure that pedestrian and vehicular traffic continued at all times on the date in question, without road closures. He further testified that his laborers, clad in fluorescent vests, were directing traffic before lunch by placing big trucks in a way to alert drivers that they could not drive in that direction and directing drivers around the work area. He admitted that he was supposed to keep the area safe for all workers, pedestrians and motorists, while repeatedly suggesting that he interpreted the permit to mean that his responsibility only related to when he and his crew were actively working at the site.

¶ 9 As the morning's activities progressed, the City's workers began their attempts to break the pavement. This involved the use of a dump truck, a backhoe and a compressor to power the jackhammer. The arrival of the backhoe nearly coincided with the conclusion of the work of Martinelli and Santiago. The extent to which the southeast bound lane of Milwaukee was closed to traffic was a subject which received some contested testimony at trial, with the City endeavoring to prove that traffic could still go through a small part of that lane and the plaintiffs attempting to show that most southeast bound vehicles were going around the Bloomingdale viaduct's center pillar into the northwest bound lane in order to continue traveling toward downtown, only to return to the southeast bound lane once they passed the viaduct. Santiago and Soto's testimony established that a number of vehicles were traveling in this fashion, including at least one CTA bus.

¶ 10 According to Santiago, after a very short amount of work that accomplished the removal of the top two inches of pavement, leaving a hole in the street (the cobblestone required more heavy equipment), Dwyer and his crew left, only to return after the accident had already occurred. Suffice it to say that the documentary evidence related to the time spent by the crew at lunch was inconsistent and at times falsified. This much was essentially conceded by Dwyer. In any event, when the City workers left, they took their trucks and most of their personal vehicles, along with any employees that were helping move traffic through or around the viaduct. Dwyer admitted that on other such occasions, he had left flagmen in place. Santiago's testimony also revealed that a different City vehicle, a ram hoe which was capable of digging through the cobblestone underlayment (which the jackhammer could not do), arrived while the other City workers were at lunch. This worker proceeded to dig a hole through the cobblestone shortly before the accident. That vehicle and the resulting hole were depicted in at least one photograph that was taken with the Soto vehicle still at the scene, which was admitted into evidence and published to the jury. The operator of the ram hoe, on the other hand, testified via evidence deposition that he had not arrived until after the accident.

ΒΆ 11 The accident itself was described by various witnesses at trial, although Martinelli testified that he did not see Soto prior to the accident. Essentially, the evidence established that Soto was operating his vehicle in a southeast direction on Milwaukee Avenue. Soto testified that as he approached the viaduct in question, he saw some "stuff" ahead in his lane and did not think that he could pass under the viaduct in that lane. Ahead of him, he saw a car and followed it as it went around the viaduct pillar and entered the northwest bound lane. As he approached Leavitt Avenue after passing under the viaduct, he was alarmed to see vehicles approaching him from the opposite direction, causing him to quickly veer back into the southeast-bound lane. At the same time, a pack of cigarettes slipped from his lap to the floor of the car. Soto's response was to reach for the pack, which only exacerbated his turn to the right and he wound up pinning Martinelli against the bumper of his truck. Soto ...


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