Aguinaga v. City of Chicago

• Decision Date: 05 March 1993
• Docket Number: No. 1-91-4035,1-91-4035
• Parties: , 183 Ill.Dec. 648 Phillip AGUINAGA, Jr., a minor by his mother and next friend, Tina Chavez, Plaintiff-Appellant, v. The CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1296

611 N.E.2d 1296

243 Ill.App.3d 552, 183 Ill.Dec. 648

Phillip AGUINAGA, Jr., a minor by his mother and next friend, Tina Chavez, Plaintiff-Appellant, v. The CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 1-91-4035.

Appellate Court of Illinois First District, Fifth Division.

March 5, 1993.

Pappas, Power & Marcus (Debra K. Marcus, William R. Power, of counsel), Chicago, for plaintiff-appellant.

Kelly R. Welsh, Corp. Counsel of the City of Chicago, Lawrence Rosenthal, Deputy Corp. Counsel, Mardell Nereim, Asst. Corp. Counsel, Frederick S. Shine, Asst. Corp. Counsel, Chicago, for defendant-appellee.

Justice MURRAY delivered the opinion of the court:

Plaintiff, Phillip Aguinaga, Jr., a minor, appeals from the judgment entered on a jury verdict in favor of the defendant, City of Chicago (City). The plaintiff suffered a fractured femur while he was in the care of Louis Barrera (Barrera). Barrera testified at trial that plaintiff's injury occurred when he fell in a hole in a City of Chicago sidewalk.

On April 24, 1984, the minor plaintiff, Phillip Aguinaga, Jr. (Phillip), was at the home of his paternal grandparents, Gloria Aguinaga and her husband. Phillip had stayed overnight the previous night. At that time, the plaintiff was two years and 20 days old.

Dr. Warren M. Brown, supervised the physicians who treated the plaintiff on the date of the injury. He testified that Phillip sustained "somewhere between an oblique and a spiral" fracture. Dr. Brown testified that he received the patient's history in writing and that the history he was given as to how the injury occurred was consistent with the injury itself. He stated "[t]hat the child could have had a fractured femur like that from somebody falling on top of him and from him falling underneath that person." When asked if he would say that this mechanism of the injury, i.e., a person carrying a child, tripping and falling, is not unusual in causing a spiral femur fracture, Dr. Brown responded that he couldn't say that it was not unusual, he could just say it wasn't unexpected. On cross-examination Dr. Brown testified that the manner in which Mr. Barrera reported the accident happening is not the only way it could happen. He did not have an opinion as to how the accident actually happened; he was simply stating that there is a possibility that it happened the way Mr. Barrera had indicated. Dr. Brown would not say that it was more likely it happened one way or the other.

Louis Barrera testified that at the time of the accident Tina Chavez, Phillip's mother, was his girlfriend. On April 24, 1984, Barrera took the 31st Street bus to the plaintiff's grandparents' house. He got off the bus at 31st and Aberdeen. Approximately 10 minutes after arriving at the Aguinaga residence, Barrera left carrying Phillip. He traveled from the sidewalk on the west side towards 31st Street. He was carrying Phillip right in front of him, in such a way that he could not see the sidewalk; he was facing Phillip, Phillip was facing him. Barrera walked toward the bus stop. He tripped and fell in a hole in the sidewalk, falling right on top of the plaintiff. During the fall Barrera heard something snap. This made him think the plaintiff was injured, even though the plaintiff did not complain of any pain. Barrera immediately took the plaintiff back to his grandparents' house. From there they went to pick up Phillip's mother and proceeded straight to the hospital.

Barrera further testified that he suffered a sprained ankle and scraped his kneecap in the fall. He has never sought medical treatment for any injury relating to the fall. Barrera identified pictures that depicted the hole he allegedly tripped in and testified that the hole was about three or four inches deep. He did not recall how Phillip hit the ground or how he hit the ground, where Phillip's legs or arms were positioned or anything of that nature. Barrera testified that he did not recall what part of his body hit Phillip's body, whether he put out his hand to break his fall or whether Phillip was crying after the incident.

Barrera testified that he had never seen the hole prior to tripping in it on April 24, 1984. When the accident occurred Barrera was alone with Phillip on the sidewalk, walking near the curb and directly towards a sign. Barrera did not recall if he had ever picked up Phillip at the Aguinagas' prior to the date of the accident. When asked if he lived approximately four blocks from the Aguinagas at the time of this accident, Barrera replied that he did not remember, but subsequently acknowledged that he previously made a statement indicating that was where he lived. Defense counsel asked during the time that Barrera lived in that area if he would sometimes walk around the streets. Barrera replied that he "never went out."

Gloria Aguinaga testified that Phillip is her grandson. She stated that on April 24, 1984, Barrera came to her house to pick up Phillip to take him home to Tina. Phillip and Barrera left the house and returned only a few minutes later. Barrera told her that he tripped in a hole down the street from where she lived. Mrs. Aguinaga testified that Phillip was about to pass out in pain and that when her husband took Phillip he screamed in pain. Mrs. Aguinaga had lived in that home for six years and the hole was there when she moved in. She identified pictures of the scene. Mrs. Aguinaga also stated that Barrera had picked up Phillip at her house on a few prior occasions.

William Kurnat testified that he had previously resided at 3154 South Aberdeen, Chicago. He owned the home in the early 70's. In the middle or early 80's a tree was removed from the sidewalk in front of the house. The tree had been cut down by the City of Chicago and a tree stump remained after the removal of the tree.

Jerry Dalton was called by the plaintiff as an adverse witness. At the time of trial he was employed by the bureau of forestry for the City of Chicago, streets and sanitation. Mr. Dalton testified that the only one that can plant or remove a tree from the front of their home in the City parkway is the department of bureau of forestry. He testified that there are two crews involved in removing a tree, one crew removes the top of the tree and a second crew follows at some other time and removes the stump. After the stump is removed they backfill the area with the chips for a level surface. Mr. Dalton testified that the department of forestry does not come back to fill in such a hole permanently with cement or anything nor do they report to some other department within the City and ask them to come out and fill that hole permanently with cement. Mr. Dalton had no knowledge regarding whether the department of forestry removed a tree from in front of 3154 South Aberdeen nor did he have any information to refute Mr. Kurnat's testimony that a tree had been removed from the front of his house. He testified that the department of bureau of forestry retains records for seven years, at which time the records are destroyed. On cross-examination, Mr. Dalton was asked to estimate the size of the hole as depicted in a picture. He estimated the width of the hole to be 18 inches to two feet. When asked how deep the hole appeared, Mr. Dalton replied: "From that photo, it looks like it's level to me."

Robert Callbeck testified that he was the deputy commissioner of streets and sanitation. Plaintiff's counsel asked whether he would perceive a three to four inch hole two feet wide in diameter to be a hazard to a pedestrian in the public way. Mr. Callbeck replied that he would not, however, he did state that it was possible that someone might trip in such a hole.

Tina Chavez testified that Phillip was her son. On April 24, 1984, she asked Barrera to pick up Phillip from his grandparents' house. Later that day, Ms. Chavez took Phillip to the hospital where he remained hospitalized for two weeks. Dr. Pyati, Dr. Brown, Dr. Treister, Dr. Fink and Phillip's regular pediatrician all saw Phillip at various times. Ms. Chavez took Phillip to see Dr. Treister because she wanted a second opinion on his leg. She received Dr. Treister's name by calling St. Elizabeth's Hospital for a referral for an orthopedic pediatrician doctor. On the date of the accident she observed that Barrera's pants were ripped, he was bleeding from his knee, he was all covered with dirt, and his ankle was swollen.

Several days after the incident Barrera showed her the accident site. Ms. Chavez then identified a picture of the accident site and stated that at the time she viewed the hole it was about 3-5 inches deep and approximately one foot wide. At the time of the accident Ms. Chavez was engaged to Barrera. She had been seeing Barrera for about a year and a half prior to that date. On cross-examination Ms. Chavez testified that she was not present when Phillip broke his leg, and therefore any information she would have about the incident is what had been told to her.

Phillip testified that he is aware that he broke his leg when he was two, but has no memory of the accident. He has pain in his leg once or twice a month. Phillip testified that he participates in gym class twice a week. He plays softball, basketball, racquetball, volleyball and handball in gym class. His favorite sport is baseball and he plays in the little league.

Dr. Michael Treister, another treating physician, testified that the history given by Barrera was consistent with the mechanism of injury, and that a femur fracture can occur without much force at all. When he performed a physical examination, he measured Phillip's lower extremities and found the right lower extremity measured one and a half centimeters longer than the left. He recommended that Phillip obtain an extra sole for the bottom of his shoe a half inch in size to more or less equalize the two sides. On cross-examination, Dr. Treister testified that the only knowledge he had about the...