DiMarco v. City of Chicago

• Court: Appellate Court of Illinois
• Writing for the Court: THEIS
• Citation: DiMarco v. City of Chicago, 662 N.E.2d 525, 278 Ill.App.3d 318 (Ill. App. 1996)
• Decision Date: 22 February 1996
• Docket Number: No. 1-94-1827,1-94-1827
• Parties: , 214 Ill.Dec. 959 Mary DiMARCO, Plaintiff-Appellant and Cross-Appellee, v. The CITY OF CHICAGO, a municipal corporation, Defendant-Appellee and Cross-Appellant.

Page 525

662 N.E.2d 525

278 Ill.App.3d 318, 214 Ill.Dec. 959

Mary DiMARCO, Plaintiff-Appellant and Cross-Appellee, v. The CITY OF CHICAGO, a municipal corporation Defendant-Appellee and Cross-Appellant.

No. 1-94-1827.

Appellate Court of Illinois First District, Fourth Division.

Feb. 22, 1996.

Appeal from the Circuit Court of Cook County; Jerome T. Burke, Judge Presiding.

Michael W. Rathsack, Chicago, for appellant and cross-appellee (Robert J. Napleton and Michael W. Rathsack, of counsel).

Susan S. Sher, Corporation Counsel of the City of Chicago, for appellee and cross-appellant (Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, and John H. Erlich, Assistant Corporation Counsel, of counsel).

Justice THEIS delivered the opinion of the court:

The plaintiff, Mary DiMarco ("DiMarco"), brought a negligence action against the City of Chicago ("City") to recover for injuries sustained after tripping and falling on a curb in Chicago. In response to a special interrogatory, the jury found that the City did not have constructive notice of the defect in the curb. The jury also awarded the plaintiff $2,767,581.35. Ultimately, the trial court entered a judgment notwithstanding the verdict for the City, concluding that the jury's response to the special interrogatory was inconsistent with the general verdict and controlled it. The court determined that the plaintiff failed to prove that the City had actual or constructive notice of the alleged defect as required by section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"). (See 745 ILCS 10/3-102(a) (West 1994).) We note that the plaintiff concedes that she did not offer any proof of actual notice. On appeal, the plaintiff argues that the special interrogatory response was not inconsistent with the general verdict. Specifically, she maintains that certain provisions of the Tort Immunity Act operate to remove her cause of action from the scope of the Act, and therefore, the notice requirement contained in section 3-102(a) does not apply. Alternatively, she maintains that the jury's response to the interrogatory was against the manifest weight of the evidence. For the reasons which follow, we conclude that the plaintiff's cause of action fell within the scope of the Tort Immunity Act and therefore the issue of notice contained in the special interrogatory controlled the general verdict. We further determine that the jury's response to the interrogatory was not against the manifest weight of the evidence. Consequently, we affirm the judgment for the City.

At trial, the plaintiff testified that on April 17, 1989, she fell while attempting to enter the passenger side of a parked car located at 9825 South Avenue L in Chicago. The plaintiff further stated that as a result of her fall she suffered a broken ankle which eventually required amputation. She testified that an uneven section of the curb which protruded upwards caused her fall. Additional testimony and exhibits at trial indicated that the section of the curb where the plaintiff fell was raised approximately two inches higher than the rest of the curb.

Several witnesses gave testimony indicating that the City repaired the curb in June of 1989, after the plaintiff's fall. Other testimony indicated that a contractor hired by the State of Illinois repaired the curb, not the City.

At trial, the parties agreed that the Cook County Highway Department constructed Avenue L between 95th and 100th streets during the 1930s and 1940s. They further agreed that the State of Illinois and the City entered into an Agreement for the Maintenance of Municipal Streets ("Agreement"), whereby the City agreed "to operate and maintain" certain portions of Avenue L for compensation. However, nothing in the Agreement expressly referred to "curbs," and the parties disagreed about whether the Agreement pertained to curbs as well as the surface of the road. Both parties presented conflicting evidence concerning whether the scope of the Agreement extended to curbs.

Following closing arguments, the court instructed the jury. Among the instructions given was the "Court's Instruction No. 1" which asked whether the defendant was "negligent" in one or more of the following respects: (a) by allowing the curb to become uneven, (b) by permitting the curb to become uneven, even though the defendant knew, or in the exercise of ordinary care should have known, that the condition existed and presented a tripping hazard, (c) by creating a two-inch height discrepancy in the curb prior to April 18, 1989, and (d) by failing to repair the curb section in question pursuant to the terms of the Agreement for the Maintenance of Municipal Streets.

Upon the defendant's request, the court also gave the jury Special Interrogatory No. 1 ("Interrogatory 1") which asked whether the City had the "responsibility for maintaining the curb in front of 9823-25 S. Avenue L in Chicago." Ultimately the jury responded affirmatively and the parties do not contest this finding on appeal. We note that Interrogatory 1 did not ask the jury to identify the grounds on which it found that the City had the responsibility for maintaining the curb.

Additionally, over the plaintiff's objection and at the defendant's request the trial court gave the jury Special Interrogatory No. 2 ("Interrogatory 2") which asked:

"Did the CITY OF CHICAGO have constructive notice of a condition that was not reasonably safe in reasonably adequate time prior to MARY DIMARCO's injury to remedy or protect against the condition?"

As part of its defense at trial, the City maintained that it could not be held liable for the plaintiff's injuries because it did not have actual or constructive notice of the defective curb as required by section 3-102(a) of the Tort Immunity Act. The trial court agreed that the plaintiff could not prevail unless she proved constructive notice, noting that the plaintiff conceded that she failed to offer proof of actual notice.

The jury responded negatively to Interrogatory 2 and rendered a verdict for the plaintiff. The court then entered a judgment notwithstanding the verdict for the City. The plaintiff now appeals arguing that Interrogatory 2 did not control the general verdict, and therefore, we should reverse the trial court's order.

We review the court's decision to give Interrogatory 2 de novo. (735 ILCS 5/2-1108 (West 1994).) We recognize that when a special interrogatory does not cover all of the issues submitted to the jury and a reasonable hypothesis exists to construe the general verdict consistent with the interrogatory, it will not control the outcome of the case. (LaPook v. City of Chicago (1991), 211 Ill.App.3d 856, 156 Ill.Dec. 232, 570 N.E.2d 708.) However, in construing the meaning of a special interrogatory, courts must examine it in light of the jury instructions to determine how the jury understood the interrogatory. LaPook, 211 Ill.App.3d at 866, 156 Ill.Dec. at 237, 570 N.E.2d at 713; Vuletich v. Bolgla (1980), 85 Ill.App.3d 810, 41 Ill.Dec. 68, 407 N.E.2d 566.

A special interrogatory is properly allowed when it concerns a material question of fact. (Meister v. Henson (1993), 253 Ill.App.3d 619, 192 Ill.Dec. 444, 625 N.E.2d 404.) The phrase "material question * * * of fact" refers to an "ultimate fact or facts" upon which the rights of the parties depend. (Vulcan Materials Co. v. Holzhauer (1992), 234 Ill.App.3d 444, 452, 174 Ill.Dec. 665, 671, 599 N.E.2d 449, 455.) In this case, therefore, we must determine whether the City's constructive notice of the defect is an ultimate fact which the plaintiff had to prove in order to prevail.

We acknowledge that the tort liability of a municipality is governed by the Tort Immunity Act. (Burke v. Grillo (1992), 227 Ill.App.3d 9, 169 Ill.Dec. 45, 590 N.E.2d 964.) Further, it is well established that the purpose of the Tort Immunity Act is to protect local governments and their employees from liability arising out of the operation of government. Burke, 227 Ill.App.3d at 18, 169 Ill.Dec. at 50, 590 N.E.2d at 969.

Initially, we look to the statutory provision which is at the heart of the dispute on appeal--section 3-102(a) of the Tort Immunity Act. Section 3-102(a) provides:

"Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a) (West 1994).

The plaintiff argues that section 3-102(a) does not apply to this case and directs us to examine section 2-101 of the Tort Immunity Act which provides, in part:

"Nothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee. Nothing in this Act affects the liability, if any, of a local public entity or public employee based on:

a). Contract;" 745 ILCS 10/2-101 (West 1994).

The plaintiff maintains that given part (d) of the Court's Instruction No. 1, the jury could have found that the City breached its duty to her by failing to repair the curb section in question pursuant to the terms of the Agreement. She contends that section 2-101 operates to remove this case from the scope of the Tort Immunity Act because the Act only applies to "tort based actions" and not to "contract based actions."

First, she claims that City owed a "contract duty" to her to maintain the curb because she was a...