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Bartkowiak v. City of Aurora

Court of Appeals of Illinois, Second District

March 30, 2018

HOLLACE BARTKOWIAK, Plaintiff-Appellant,
v.
THE CITY OF AURORA, Defendant-Appellee.

          Rehearing denied April 27, 2018

          Appeal from the Circuit Court of Kane County, No. 12-L-119; the Hon. Mark A. Pheanis, Judge, presiding.

          Eric Jones, of Tarpey, Jones & Schroeder, LLC, and David R. Nordwall, both of Chicago, for appellant.

          Jennifer L. Turiello, Dominick L. Lanzito, and Thomas J. Condon Jr., of Peterson, Johnson & Murray-Chicago, LLC, of Chicago, for appellee.

          Panel JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.

          OPINION

          BURKE, JUSTICE

         ¶ 1 Plaintiff, Hollace Bartkowiak, brought a negligence action against defendant, the City of Aurora, for injuries that she alleged were caused by a depression located in an asphalt parking lot of the Route 59 Metra train station. The jury rendered a verdict in favor of plaintiff but answered yes to a special interrogatory that asked if the depression had "a vertical difference of 1.5 inches or less." The trial court entered judgment for defendant, finding that the special interrogatory was inconsistent with the general verdict. In its denial of plaintiff's motion to reconsider, the court determined that the special interrogatory resolved the factual question of whether the depression was de minimis and that, because it was de minimis and there were no aggravating factors that could render it actionable, defendant, as a matter of law, owed no duty to guard against hazards created by the depression. Plaintiff contends that the special interrogatory should not have been given, as it was not determinative of an ultimate fact, and that the answer was not irreconcilable with the general verdict. Both issues turn on plaintiff's argument that, even if the depth of the depression was 1.5 inches or less, aggravating factors presented a question of fact as to whether it posed an unreasonable risk. We agree, and thus we reverse the trial court's judgment and remand the cause with directions to reinstate the verdict.

         ¶ 2 I. FACTS

         ¶ 3 At approximately 5:20 p.m. on December 6, 2011, plaintiff was walking to her parked car in the parking lot of the Route 59 Metra train station, which was owned, managed, controlled, and maintained by defendant, when plaintiff fell. She had caught her toe in a depression located in a pavement seam in a driving aisle as she crossed the aisle to get to her car. Plaintiff suffered a fractured humerus and underwent four surgeries, including a total reverse shoulder replacement, followed by multiple courses of physical therapy.

         ¶ 4 Plaintiff sued defendant for the injuries she sustained as a result of the fall. She alleged that defendant failed to maintain the asphalt surface of the parking lot in a reasonably safe condition. She also contended that defendant failed to provide adequate artificial lighting in the parking lot so that pedestrians could see potential defects that existed therein.

         ¶ 5 Defendant denied the material allegations and raised the affirmative defenses of contributory negligence and immunity under section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 2010)).

         ¶ 6 Following discovery, defendant filed a motion for summary judgment under section 3-102 of the Tort Immunity Act. Defendant argued that plaintiff failed to establish that defendant had actual or constructive notice of the depression in which she tripped. Defendant also argued that the depression was de minimis. Plaintiff responded that the de minimis rule was inapplicable because she testified during her deposition that she believed that the depression was four inches deep. Plaintiff reiterated her allegation that the parking lot's artificial lighting was insufficient to allow her to spot the depression and avoid her accident. She further argued that at the time of the accident her attention was diverted by pedestrian and vehicular traffic in the parking lot such that the distraction exception to the open-and-obvious doctrine applied.

         ¶ 7 The trial court denied the motion, finding that a question of material fact existed as to whether the depression was de minimis, based upon plaintiff's deposition testimony that the depression was four inches deep. The court also rejected defendant's open-and-obvious defense, finding a material factual dispute based on plaintiff's deposition testimony regarding the purported insufficiency of the artificial lighting in defendant's parking lot.

         ¶ 8 After discovery of expert witnesses, defendant filed a motion to reconsider the order denying summary judgment. Defendant noted that plaintiff's and defendant's experts agreed that the lighting in the parking lot was sufficient when the accident occurred and that the depression was de minimis.

         ¶ 9 Plaintiff maintained that summary judgment was not warranted, due to conflicting testimony about both the depth of the depression and the sufficiency of the lighting. Plaintiff argued that her expert's testimony about the depth of the depression and the sufficiency of the lighting did not defeat her contrary attestations that the depression had a vertical depth of four inches and that the parking lot was inadequately illuminated. Notwithstanding her expert's opinion that the depression appeared shallow, plaintiff noted that he also had opined that the depression constituted an unreasonably dangerous condition.

         ¶ 10 Plaintiff further argued that, even accepting her expert's testimony that the depression appeared to be 1.5 inches deep, aggravating factors rendered the de minimis rule inapplicable. Plaintiff noted the extremely high volume of pedestrians and that defendant knew about the deteriorated condition of the pavement seam, having previously repaired other openings, cracks, and depressions along the seam.

         ¶ 11 The trial court granted in part and denied in part the motion to reconsider. The court found that the sufficiency of lighting in a commercial or public setting was a subject requiring expert testimony. Thus, based upon the expert testimony, the court found that no genuine issue of material fact existed as to the adequacy of the lighting in the parking lot, and it awarded defendant summary judgment on that issue. As to the depression, defendant argued that it was either de minimis or open and obvious and therefore not actionable. The court found that plaintiff's estimation of the depth of the depression as four inches created a question of fact "as to whether the [depression was] de ...


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