Baker v. City of Granite City

• Decision Date: 08 August 1979
• Docket Number: No. 78-392,78-392
• Citation: 394 N.E.2d 33,31 Ill.Dec. 117,75 Ill.App.3d 157
• Parties: , 31 Ill.Dec. 117 Mary BAKER, Plaintiff-Appellee, v. CITY OF GRANITE CITY et al., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 33

394 N.E.2d 33

75 Ill.App.3d 157, 31 Ill.Dec. 117

Mary BAKER, Plaintiff-Appellee, v. CITY OF GRANITE CITY et al., Defendant-Appellant.

No. 78-392.

Appellate Court of Illinois, Fifth District.

Aug. 8, 1979.

Irvin Slate, Jr., Granite City, for defendant-appellant.

Richard Allen, Granite City, Ben S. Urban, Belleville, for plaintiff-appellee.

KARNS, Justice:

Defendant, City of Granite City, appeals from the judgment of the Circuit Court of Madison County entered on a jury verdict in favor of plaintiff, Mary Baker, in her action to recover damages for personal injuries sustained in a fall on a city sidewalk.

On June 1, 1973, plaintiff went to the First National Bank located across the street from city hall at 20th Street and Edison Avenue, a busy intersection in Granite City, to do her banking. When she left the building through the Edison Avenue exit, she caught her heel in one of several cracks in the sidewalk and fell on her hands. When she noticed some swelling of her ankle and experienced pain in her leg and back, she reported her injury to bank employees and was sent to the hospital for x-rays. Her injury was later diagnosed as a herniated lumbar disc for which she received extensive medical treatment and underwent back surgery.

Approximately a week after the accident, plaintiff measured the hole in which she caught her heel and found it to be 4 inches wide and 13/4 inches to 2 inches deep. Lionell Portell, Superintendent of Streets of Granite City, testified that he inspected and repaired the crack shortly after the incident. In his estimation, the crack was 1 to 3 inches in width and about 11/4 inches deep. He further testified that prior to the day of the accident he was aware that there were some cracks in the sidewalks in the Edison Avenue area; however, he claimed that he had no specific knowledge of the crack in question until notified by bank employees after the injury. Ivan Pittman, the bank vice president, testified that he was familiar with the bank entrance and exit having used it regularly for 13 years. He claimed that prior to June 1, 1973, he had never noticed the crack in the sidewalk.

Photographs taken shortly after the accident and a plat subsequently drawn of the sidewalk, revealed the existence of several jagged cracks in the sidewalk in front of the bank. The one in question ran from the entrance of the bank perpendicularly to the curb of Edison Avenue.

At the close of the case, the following special interrogatory, tendered by defendant, was submitted to the jury:

"Do you find and believe from the evidence that the sidewalk at 20th and Edison Avenue in Granite City, Illinois, where the Plaintiff alleges she fell on June 1, 1973, was in a reasonably safe condition at the time of the purported fall?"

The jury answered this interrogatory in the negative and returned a verdict in favor of plaintiff in the amount of $125,000.

On appeal, defendant contends that the trial court erred in refusing to direct a verdict in its favor where there was no evidence tending to establish that the defect in the sidewalk was unreasonably dangerous or that defendant had actual or constructive notice of the alleged defective condition. Plaintiff counters by arguing that the verdict was fully supported by the evidence.

Under section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1977, ch. 85, par. 3-102) a local public entity has the duty to maintain its property in a reasonably safe condition; however, it is not liable for any injury unless it has either actual or constructive notice of the condition that is not reasonably safe for a sufficient time prior to the injury to have taken corrective action. (Livings v. City of Chicago, 26 Ill.App.3d 850, 326 N.E.2d 170 (1st Dist. 1975).) The threshold question in determining negligence is whether the crack in the sidewalk which caused the injury was an unreasonably dangerous or unsafe condition. Defendant maintains that the evidence unequivocally established that it was not and therefore claims that it was improper for the court to submit this issue to the jury. The law is well established "that a jury question on the issue of the city's negligence is presented only when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it." (Arvidson v. City of Elmhurst, 11 Ill.2d 601, 605, 145 N.E.2d 105, 107 (1957); Warner v. City of Chicago, 72 Ill.2d 100, 19 Ill.Dec. 1, 378 N.E.2d 502 (1978).) It is also established that minor sidewalk defects or irregularities are not actionable and that under such a situation the question becomes one of law. (Warner v. City of Chicago.) But courts have had great difficulty determining when an irregularity is so slight that it becomes a question for the court or when it is not, so that a jury question is presented. (See Arvidson v. City of Elmhurst.) We believe, as stated in Arvidson, that where all reasonable minds cannot agree that a purported defect is so minor that no danger to pedestrians could reasonably be foreseen the issue is properly for the jury's consideration. See also Swenson v. City of Rockford, 9 Ill.2d 122, 136 N.E.2d 777 (1956).

Applying these principles to the present case, we believe the trial court did not err in refusing to direct a verdict. The...