Altszyler v. Horizon House Condominium Ass'n
| Decision Date | 14 September 1988 |
| Docket Number | No. 85-1283,85-1283 |
| Citation | 529 N.E.2d 704,124 Ill.Dec. 723,175 Ill.App.3d 93 |
| Parties | , 124 Ill.Dec. 723 William ALTSZYLER, Plaintiff-Appellee, v. HORIZON HOUSE CONDOMINIUM ASSOCIATION and Arthur Rubloff & Company, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Wildman, Harrold, Allen & Dixon, Chicago (Howard T. Brinton, Ruth E. VanDemark, of counsel), for defendants-appellants.
Corboy & Demetrio, Chicago (Philip H. Corboy, Robert A. Clifford, David A. Novoselsky, of counsel), for plaintiff-appellee.
This is a personal injury action brought by plaintiff, William Altszyler, against defendants Horizon House Condominium Association (Association), Arthur Rubloff & Company (Rubloff), and the City of Chicago (City). The action charges defendants with negligence. The Association and Rubloff are appealing from a judgment entered upon a jury verdict against them and in favor of plaintiff. The amount of the verdict was $943,129.93, which was reduced to $801,660.44 to reflect the jury's finding that plaintiff was 15% negligent. A directed verdict and judgment was entered in favor of the City, from which no appeal has been taken. We affirm the judgment against the Association and Rubloff.
On May 11, 1977, at approximately 5 p.m., plaintiff, age 29, was riding a ten-speed bicycle northbound on the sidewalk on the east side of the 5700 north block of Sheridan Road. He was riding at a leisurely pace, seated on the bicycle and leaning forward with both hands holding the handlebars. When the bicycle went over a grade differential in the sidewalk, the front wheel disengaged and the bike collapsed. Plaintiff was thrust forward over the handlebars and hit his head on the sidewalk, causing him to be seriously injured.
A motorist, Gary Leahy (Leahy), and his wife, witnessed the occurrence. Leahy stopped his auto, and he and wife ran over to help plaintiff, who was lying on the sidewalk. An ambulance was called and plaintiff was taken to a hospital. He suffered brain trauma from the occurrence, and has no recollection of anything that happened on May 11, 1977. Leahy testified how the occurrence took place.
The grade differential in the sidewalk is the result of a height difference of about 3 inches between two concrete sidewalk slabs. The east side of the higher sidewalk slab abuts a 3 1/2 to 4 feet high concrete retaining wall that is on the property of the Horizon House. The Horizon House is a 32-story condominium building located at 5733 North Sheridan Road. The Horizon House is owned by the Association and is managed by Rubloff.
The Horizon House building is set back approximately 200 feet from the east side of Sheridan Road. The building's parking lot is in front of the building and is enclosed by the 3 1/2 to 4 feet high concrete retaining wall which abuts the sidewalk on Sheridan Road. The sidewalk runs about 237 feet from the south end to the north end of the Horizon House property line. The concrete retaining wall runs north and south parallel to the sidewalk and stops short 4.68 inches south of the north end of the Horizon House property line. It then runs west and east, perpendicular to the sidewalk on Sheridan Road, along the north side of the parking lot.
When Horizon House was built in 1966, an old house was located at 5747 North Sheridan Road, which is the property immediately north of the Horizon House. The old house was set on land which "rose three feet or more" from the sidewalk and was separated from the sidewalk by a concrete retaining wall which was about 1 1/2 feet high. Although the old house had been razed and the vacant property was being used for parking at the time of plaintiff's accident, the concrete retaining wall remained.
John Fritsch was employed by Rubloff as a janitor in charge of maintenance at the Horizon House from March 1, 1966 until 1982. He was employed as the head janitor at Horizon House in 1966 when the Horizon House and the sidewalk in front of the building were built. According to Fritsch, after the Horizon House was built, the sidewalk slab immediately north of the north end of the Horizon House property line began to shift and sink, creating a depression or difference in height of about 3 inches between that sidewalk slab and the sidewalk slab at the north end of the Horizon House property line. The north end of the higher sidewalk slab was in line with the north end of the Horizon House property line. The south end of the lower sidewalk slab was in line with the south end of the property line for 5747 North Sheridan Road.
Fritsch stated that the deterioration in the grade of the sidewalk slabs was caused by water which washed down from between the 3 1/2 to 4 feet concrete retaining wall that was built on the Horizon House property and the retaining wall at the edge of the property at 5747 North Sheridan Road. The water would accumulate on the sidewalk and wash away the dirt and sand supporting the sidewalk. This action caused the sidewalk slab next to the sidewalk slab at the north end of the Horizon House property line to sink. The sidewalk slab at the north end of the Horizon House property remained level. Fritch attempted to correct the grade differential between the two sidewalk slabs by putting concrete in the space that had been created between the two slabs. However, when the water continued to drain on the sidewalk, the concrete cracked and the sidewalk slab continued to sink.
In the spring of 1977, Fritch saw hundreds of bicyclists everyday riding up and down the sidewalk in front of Horizon House. The bicyclists would use the sidewalk on trips to and from the nearby beachfront park. Several witnesses testified that there was heavy traffic on Sheridan Road which necessitated the use of the sidewalk by bicyclists. Fritch stated that he was aware that the grade differential between the sidewalk slabs created a problem for the bicyclists. He testified:
Well, the elevation was too high and they would just go around it instead of going right over it.
Fritch also testified that when the bicyclists would go around the sidewalk slabs with the grade differential, they would cross over and damage the parkway lawn abutting the sidewalk in front of the Horizon House. Fritch took measures to protect the parkway lawn by putting two stakes in the lawn next to the uneven sidewalk slabs, and he put a chain across the stakes. He testified:
They would ride on the lawn and then I put the chain across there so they couldn't go on the lawn and the chain was torn down and then I filled the hole with concrete.
Later, when filling the hole with concrete did not prove satisfactory, Fritch put a rock and stone on the parkway lawn to prevent bicyclists from traversing onto the parkway lawn when attempting to avoid the depression between the two sidewalk slabs. Fritch testified that he saw bicyclists actually stop and get off their bicycles to avoid the drop in the elevation between the sidewalk slabs. Fritch also testified that neither he nor anyone from Horizon House had ever notified the City of the depression or differential grade level in the sidewalk.
George A. Kennedy, an engineer, testified that there had been a grade differential of about 3 inches between the sidewalk slabs and that such a differential would be unsafe for bicyclists or pedestrians. Kennedy testified that when Horizon House was built, the builders left a 4 1/2 to 5 inch gap between the concrete retaining wall they built on the north end of the Horizon House property and the concrete retaining wall that existed on the property immediately north of the Horizon House property. The gap between the two walls created an opening which funneled drainage water onto the sidewalk, which in turn caused one of the concrete slabs to sink. As a result, the grade differential of about 3 inches between the two sidewalk slabs developed.
Defendants first contend that, "at the heart of this appeal is the central and overriding issue of duty." Defendants argue that as a matter of law, no duty running from defendants to plaintiff existed. To support this position, defendants argue that they owed no duty (1) of special care in relation to the defective sidewalk slab as a nonabutting owner and manager; (2) to prevent rainwater from running onto the sidewalks; (3) to build on the property lines; (4) to install a catch basin; (5) to preserve the retaining wall; (6) to replace or rebuild the defective sidewalk; (7) to repair the sidewalk and (8) to notify the City of the depression. We agree with defendants that the central and overriding issue in their appeal is whether they owed plaintiff a duty with respect to the use of their property. 1 However, we disagree with defendants arguments that they owed plaintiff no duty.
Initially, we observe that defendants misstate the Association's relationship to the sidewalk involved in the incident. Defendants state that the Association is a nonabutting landowner with respect to the incident. However, the record demonstrates that the incident occurred as a result of the different grade level between the sidewalk slab abutting the Association's property and the sidewalk slab immediately to the north. It follows that the unsafe condition causing the incident lies in part on the sidewalk abutting the property belonging to the Association. Thus, the Association is an abutting landowner rather than a nonabutting landowner with respect to the sidewalk involved in the incident.
As to defendants' duty, it is a basic principle of law that a landowner has no duty to a pedestrian using a public sidewalk abutting the land for harm that may be caused by a natural condition of the land. However, to be free from negligence, a landowner does have a duty of ordinary care to a pedestrian using a public sidewalk abutting the land for harm that may be caused by a nonnatural condition of the land. Bansch v. Donnelly (1979), 77...
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...Rule 220(b)(1), and the trial court erred in excluding his testimony. Relying on Altszyler v. Horizon House Condominium Association (1988), 175 Ill.App.3d 93, 100, 124 Ill.Dec. 723, 729, 529 N.E.2d 704, 710, defendants argue that, where the witness is not testifying as an expert, any opinio......
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Tierney v. Community Memorial General Hosp., 1-92-2262
...339; Long v. Yellow Cab Co. (1985), 137 Ill.App.3d 324, 92 Ill.Dec. 99, 484 N.E.2d 830; Altszyler v. Horizon House Condominium Assoc. (1987), 175 Ill.App.3d 93, 124 Ill.Dec. 723, 529 N.E.2d 704, appeal allowed, 123 Ill.2d 555, 128 Ill.Dec. 887, 535 N.E.2d 398.) After considering the hospita......
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Bombagetti v. Amine
...be disturbed on review as excessive unless it is shocking to the judicial conscience. (Altszyler v. Horizon House Condominium Association (1988), 175 Ill.App.3d 93, 124 Ill.Dec. 723, 529 N.E.2d 704.) Plaintiff, a 29 year-old man with a family has suffered pain and restricted bodily movement......
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Questions Calling for a Conclusion
...536 N.E. 2d 447, 180 Ill.App.3d 766 (3 Dist. 1989), First Bank of Billings v. Clark , 771 P. 2d 84 (Mont. 1989), Altszyler v. Horizon , 529 N.E.2d 704, 124 Ill. Dec. 723, 175 Ill.App.3d 93 (1988). See also U.S. v. Rivera , 22 F.3d 430 (2d Cir. 1994), and Keller v United States , 38 F.3d 16 ......
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Questions calling for a conclusion
...536 N.E. 2d 447, 180 Ill.App.3d 766 (3 Dist. 1989), First Bank of Billings v. Clark , 771 P. 2d 84 (Mont. 1989), Altszyler v. Horizon , 529 N.E.2d 704, 124 Ill. Dec. 723, 175 Ill.App.3d 93 (1988). See also U.S. v. Rivera , 22 F.3d 430 (2d Cir. 1994), and Keller v United States , 38 F.3d 16 ......
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Questions calling for a conclusion
...536 N.E. 2d 447, 180 Ill.App.3d 766 (3 Dist. 1989), First Bank of Billings v. Clark , 771 P. 2d 84 (Mont. 1989), Altszyler v. Horizon , 529 N.E.2d 704, 124 Ill. Dec. 723, 175 Ill.App.3d 93 (1988). See also U.S. v. Rivera , 22 F.3d 430 (2d Cir. 1994), and Keller v United States , 38 F.3d 16 ......
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Questions Calling for a Conclusion
...536 N.E. 2d 447, 180 Ill.App.3d 766 (3 Dist. 1989), First Bank of Billings v. Clark , 771 P. 2d 84 (Mont. 1989), Altszyler v. Horizon , 529 N.E.2d 704, 124 Ill. Dec. 723, 175 Ill.App.3d 93 (1988). See also U.S. v. Rivera , 22 F.3d 430 (2d Cir. 1994), and Keller v United States , 38 F.3d 16 ......