Byrne v. Catholic Bishop of Chicago

• Decision Date: 08 January 1971
• Docket Number: Gen. No. 54127
• Parties: Andrew A. BYRNE, Plaintiff-Appellant, v. CATHOLIC BISHOP OF CHICAGO, a corporation sole, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 708

266 N.E.2d 708

131 Ill.App.2d 356

Andrew A. BYRNE, Plaintiff-Appellant, v. CATHOLIC BISHOP OF CHICAGO, a corporation sole, Defendant-Appellee.

Gen. No. 54127.

Appellate Court of Illinois, First District, Fourth Division.

Jan. 8, 1971.

Bradley & Bradley, Chicago, for plaintiff-appellant.

Cornelius J. Harrington, Jr., Thomas W. Scheuneman, of Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, for defendant-appellee; John M. O'Connor, Jr., Chicago, of counsel.

DRUCKER, Justice.

Plaintiff appeals from the entry of a judgment in favor of defendant notwithstanding the verdict. Plaintiff filed this negligence action to recover for personal injuries which resulted from a fall in a parking lot maintained and controlled by defendant. At the close of all the evidence the jury returned a verdict in favor of the plaintiff for $10,000. Thereafter defendant filed a post-trial motion for judgment notwithstanding the verdict which was granted by the trial court. Plaintiff appeals from this ruling.

On appeal plaintiff contends that the question of defendant's negligence in clearing the parking lot of snow was one of fact and properly submitted to the jury and that there was sufficient evidence to support the jury verdict in his favor.

On December 23, 1961, plaintiff drove his car to St. Colette's Church in Rolling Meadows, Illinois, to attend Saturday confession service. He was a regular parishioner at the church. Plaintiff drove his car into the church parking lot which was owned, controlled and maintained by the defendant, and parked in the center of the lot located to the east of the church, approximately two hundred feet from the church entrance.

Plaintiff testified that about three inches of snow had fallen the night before. (According to the weather bureau report, admitted into evidence without objection, the station nearest to Rolling Meadows reported that there had been seven or eight inches of snow.) At 4:00 P.M. when plaintiff arrived at the church it was wet and drizzling which made the snow slushy.

A piece of road grading equipment was being operated to clear off the parking lot. When plaintiff emerged from his car he noticed that the parking lot was wet and that there were patches of snow all over the lot. He noticed nothing about the ground right next to his car door except that it was wet. The grader had already cleared out the area where he parked his car.

Plaintiff had no difficulty walking to the church except that he was compelled to walk around the mounds of snow at the sidewalk where the grader had pushed the snow. The grader was pushing the snow toward the church and the sidwalk and it was being operated just to the north of where he had parked his car, some sixty or seventy feet away.

Plaintiff remained in the church for fifteen or twenty minutes. When he came out the grader was still working in the area north of his car. There were patches of snow all over the lot 'but not so much that I couldn't avoid them.' There were no other cars parked in the lot except one car that pulled up just as he started to get into his car. As he walked around to the side of his car to reach for the door on the driver's side, he stepped on a mound of snow and fell, striking his head and knee. As he lay on the pavement he looked around to see what he had fallen on and noticed a patch of snow located right along the side of his car. The patch was a foot or so in diameter and two or three inches high and an inch thick around the edges. He did not know whether the patch of snow was hard or soft nor did he know whether this patch of snow was missed by the grader, dropped by some other car, or where it came from.

As a result of the fall the plaintiff suffered a fractured kneecap requiring hospitalization and surgery. He also lost time from work.

Father James Halpin, pastor of St. Colette's Church, (called by plaintiff under Section 60 of the Civil Practice Act, Ill.Rev.Stat.1969, c. 110, § 60) testified that Myer Bros., who were in the cement business, cleared the snow from the parking lot on a voluntary basis. The snow clearing equipment arrived some time previous to the hours of the service of confession, which began at 4:00 P.M. The grader had a blade which was set at an angle and as it plowed the snow fell off to the left or right depending on the direction in which the blade was set. After a heavy snowfall it was not possible for the road grader or any other type of equipment to remove all of the snow from the surface of the parking lot.

Defendant offered no additional evidence.

Opinion

Plaintiff contends that the question of defendant's negligence in clearing the parking lot of snow was one of fact and properly submitted to the jury and that there was sufficient evidence to support the jury verdict in his favor. Defendant argues that the trial court properly entered a judgment notwithstanding the verdict since there was no evidence from which the jury could have concluded that the patch of snow on which plaintiff slipped was an unnatural condition or a natural condition aggravated by defendant. The standard now applicable to judgments notwithstanding the verdict is set forth in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513:

In our judgment verdicts ought to be directed and judgments N.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

In Pedrick, supra, 505, 229 N.E.2d 510, the court also said:

* * * (T)he right to a jury trial includes the right to a jury verdict only if there are factual disputes of some substance.

In Zide v. Jewel Tea Co., 39 Ill.App.2d 217, 222, 188 N.E.2d 383, 385, a case in which the plaintiff slipped on a patch of ice in defendant's parking lot, the court stated:

A property owner is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of its customers where the condition is a natural one and not caused or aggravated by the property owner. Kelly v. Huyvaert, 323 Ill.App. 643, 56 N.E.2d 638. However, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice which did not accumulate from natural causes, but as a result of the property owner doing something which causes an unnatural or artificial accumulation of the ice and snow. Fitz Simons v. National...