Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County No. 07 L 14089 The Honorable Elizabeth M. Budzinski, Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
¶ 1 Following trial, the jury returned a general verdict in favor of Todd Smart, who was injured while riding his bicycle on a bicycle path on a city street that was in the process of being resurfaced by the City of Chicago (City). The City claims that a new trial is warranted because the trial court erroneously refused to (1) submit a special interrogatory and (2) tender its proffered premises liability issues instruction to the jury. On appeal, the City claims that its special interrogatory was in proper form, asked a single, direct question that was not prejudicial to Smart, and tested the jury's general verdict. The City also claims that its proffered premises liability issues instruction should have been tendered to the jury because: (1) Smart's claims relate to the street's condition; (2) the City was not engaging in any activity on the day of Smart's accident; and (3) it does not operate a business. For the reasons stated below, we affirm.
¶ 2 BACKGROUND
¶ 3 Smart was injured on July 1, 2007, while riding on a bicycle path near the intersection of north Marcey Street and west Cortland Street in Chicago, Illinois. At the time of the accident, Smart, an avid amateur athlete, was riding a triathlon road bicycle, which he had ridden previously thousands of times. He rode his bicycle eastbound on the south side of Cortland through the intersection of Cortland and Marcey. He had traveled on this same path leading to the intersection hundreds of times prior to the accident and never saw the intersection in the condition it was in on July 1, 2007.
¶ 4 A portion of the street leading to the intersection is designated as a bicycle route, which is apparent by the silhouette of a bicycle painted on the pavement between two solid white lines. Signs on street posts marked with the words "Lakefront Trail" are located along the path leading to the accident intersection, which also designate the street as a bicycle path. Vehicle traffic is located on both sides of the bicycle path that leads to the intersection. The bicycle path becomes a shared lane with vehicle traffic just past the intersection.
¶ 5 On the morning of the accident, Smart was riding his bicycle on the path to go home after playing tennis with a friend. He was wearing a helmet with a flashing light on the back, a yellow reflective bicycle windbreaker and special shoes that clip onto the bicycle's pedals.
¶ 6 As Smart approached the intersection, he noticed that the street's surface changed from a smooth to a rugged texture as a result of a resurfacing project. There was a lip at the edge of the resurfacing area where the removal of the top layer of asphalt caused a drop off. Smart was concerned about the rugged, deep groves of the street's surface because it created an inconsistency in the pavement making it difficult to keep a bicycle stable.
¶ 7 Upon noticing the condition of the intersection, Smart slowed his speed from 12 to 14 miles per hour to 6 to 10 miles per hour. Utility covers and, in particular, Commonwealth Edison (Com Ed) vault covers, which are normally flush with the pavement, were protruding above the street's surface. As Smart approached one of the square Com Ed covers, he steered left to go around it at which point the front tire of his bicycle lodged in the roadway. The abrupt stop of Smart's bicycle propelled him over the handlebars and he landed on his left shoulder approximately six feet away.
¶ 8 After the fall, Smart got up, retrieved his bicycle, and walked to the median in the street so he would not be in the way of vehicle traffic. As Smart was trying to remove his jacket, a fire truck that was en route to get fuel pulled over to assist him. The firemen called an ambulance, which later transported Smart to the hospital.
¶ 9 As a result of the fall, Smart's left shoulder was fractured in multiple places and the humerus bone was dislocated and rotated from the socket. Smart had shoulder surgery on July 4, 2007, and a second surgery about a year later. The City does not raise any issue on appeal regarding the nature and extent of Smart's injuries or dispute that they are permanent and disabling.
¶ 10 A week after his accident, Smart and his wife took photographs of the street at the intersection. The condition of the street that caused the front of Smart's bicycle to become lodged was a "gash" or shallow trench to the side of the Com Ed vault that was approximately 2 inches deep, 5 inches long and 14 inches wide. The gash or shallow trench was not visible from any distance and was visible to Smart only as he stood almost directly on top of it. As he traveled through the intersection of Cortland and Marcey on July 1, 2007, the only options Smart had for avoiding the trench, had he seen it, were to veer right and hit the raised Com Ed vault or veer left into a lane of vehicular traffic.
¶ 11 Street resurfacing requires grinding, which is also referred to as milling, a process that removes the existing street surface. Grinding or milling is done in stages. A large grinder removes the bulk of the existing street surface to a depth of 1.5 inches and a sweeper at the rear of the grinder retrieves remaining milled asphalt pieces. Once the surface has been milled, a small grinder performs trim work, which would include chipping the asphalt around a structure, such as sewer or utility covers. Small grinding, if performed properly, should leave an incline around raised structures in the street so that the transition from the lower milled surface to the raised structure is not so abrupt.
¶ 12 In the City of Chicago, resurfacing projects are performed in phases. The large grinding work is done first. This initial work is performed and cleaned up in approximately a week. Small grinding work follows. The street is then resurfaced. This process typically takes about a month. The phased work is planned for the efficient use of City personnel and equipment. Efficiency considerations aside, the process of resurfacing a street can be completed in a day or two.
¶ 13 On July 1, 2007, both large and small grinding had been completed at the Cortland and Marcey intersection. Large grinding was completed on June 20; small grinding was completed on June 25. The small grinding left no transition between the removed street surface and the square Com Ed vaults. The shallow trench that caused Smart's front wheel to lodge was created by a small grinder being left on and standing in one place. The grinding at the intersection was performed in a bridge deck pattern that looked like a diamond with pronounced straight lines. The bridge deck pattern is used to increase asphalt adhesion and to achieve a flat surface for purposes of adding a layer of asphalt. No other work was done at the intersection until July 10, 2007, when it was resurfaced.
¶ 14 On December 18, 2007, Smart filed a one-count negligence complaint against the City. The complaint asserted that the City owned, operated, maintained and controlled the south side of Cortland where he was riding his bicycle. Smart alleged that the City failed to maintain its property in a reasonably safe condition. The City answered the complaint and asserted multiple affirmative defenses under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-201, 3-102, 3-104 (West 2006)) claiming that: (1) it maintained its property in a reasonably safe condition at all times and did not have actual or constructive notice of any alleged defect of its property; (2) it had no duty to provide warnings or barricades; and (3) its routing of traffic and placement of any barricades involved the determination of policy and exercise of discretion. The City also asserted that Smart was comparatively negligent. The City filed a motion in limine to bar testimony, argument and evidence relating to the City's alleged failure to provide warnings or barricades, which the trial court granted.
¶ 15 The City also filed a motion for summary judgment on November 9, 2010, asserting that it owed no duty to protect Smart from the street's open and obvious condition. The trial court denied the City's motion on January 12, 2011. The case proceeded to a jury trial.
¶ 16 Eugene Paul Holland, a consulting engineer architect, testified as an expert on Smart's behalf. Holland has worked on projects in the City since 1964, many of them involving the construction of streets. He is ...