Gutstein v. City Of Evanston

• Decision Date: 04 June 2010
• Docket Number: No. 1-08-3607.,1-08-3607.
• Citation: 402 Ill.App.3d 610,341 Ill.Dec. 26,929 N.E.2d 680
• Parties: Elizabeth GUTSTEIN, Plaintiff-Appellee,v.CITY OF EVANSTON, a Municipal Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 610

929 N.E.2d 680

341 Ill.Dec. 26

Elizabeth GUTSTEIN, Plaintiff-Appellee,v.CITY OF EVANSTON, a Municipal Corporation, Defendant-Appellant.

No. 1-08-3607.

Appellate Court of Illinois First District, Sixth Division.

June 4, 2010.

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City of Evanston Law Department, Evanston, IL, for Appellant.

Corboy & Demetrio, P.C., Chicago, IL, for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

Plaintiff Elizabeth Gutstein filed suit in the circuit court of Cook County against the municipal defendant, the City of Evanston (City), alleging that she fell and suffered injuries to her elbow resulting from the municipality's negligent maintenance of an unimproved alley in back of plaintiff's home. A jury returned a verdict in favor of plaintiff in the amount of $201,829.00, less a 50% deduction for contributory negligence, and the trial court entered judgment on that verdict. The City appeals the trial court's denial of its timely filed posttrial motion. On appeal, the City argues that (1) plaintiff was not an intended user of the alley and thus the City is entitled to a judgment n.o.v., (2) the trial court abused its discretion in deciding that plaintiff was an intended user as a matter of law, and (3) the City was entitled to immunity from liability pursuant to section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201 (West 2008)).

BACKGROUND

On July 10, 2004, plaintiff pulled a weed from the backyard garden of her home in Evanston and decided to dispose of the unwanted plant in the yard waste disposal bin provided for her use by the City. Two unimproved alleys abut plaintiff's property. One alley runs north-south along the eastern edge of plaintiff's property and the other runs east-west along the southern edge of the property. Plaintiff's yard waste bin, along with disposal containers for recycling and trash, sit outside plaintiff's property along the east-west alley (alley). A gated fence encircles plaintiff's backyard, so plaintiff proceeded down a path through her backyard to the gate to enter the alley. When she reached the gate, plaintiff testified that she scanned the area to make sure there were no depressions or other impediments in the alley. Prior to stepping out into the alley, plaintiff heard an ice cream truck driving along the alley and turned to locate the vehicle. She then stepped out into the alley and tripped in a “softball-sized” depression in the unimproved alley, causing her to fall and suffer injuries to her elbow.

Plaintiff's partner, Patricia Butkus, testified at trial that she had been complaining to the City about the condition of the east-west alley for years. Ms. Butkus testified that she telephoned the City on numerous occasions and left voice-mail messages with the public works department. In March 2004, Ms. Butkus exchanged e-mail correspondence with City Alderman Elizabeth Tisdahl, in which she complained that commercial traffic ¹ was damaging the alley and creating a dangerous condition in the vicinity of the gate to Ms. Butkus's and plaintiff's property. Ms. Butkus testified that Alderman Tisdahl visited the alley shortly thereafter and agreed that the area around the gate was in poor condition. Alderman Tisdahl assured Ms. Butkus that she would place the plaintiff's residence on the City's priority list for alley repairs and instructed Ms. Butkus to telephone the City to follow up and confirm that this was done.

The alley abutting plaintiff's property is what the City calls an “unimproved alley,” meaning that it is unpaved. There was some dispute at trial as to what material constituted the surface of the alley at the time of plaintiff's injury. Plaintiff argued that the alley surface consisted of limestone gravel while the City maintained that the alley had been resurfaced with asphalt chips. Both parties agree that the ravages of winter cause significant damage to the surface of an unimproved alley. In order to address this problem, the City had instituted a program of annually regrading its unimproved alleys.

Glen Crabtree, a public works supervisor for the City, testified for the plaintiff as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (735 ILCS 5/2-1102 (West 2008)). Mr. Crabtree's duties included the care and maintenance of the City's alleys, streets, and sidewalks. As a supervisor, Mr. Crabtree reported to the superintendent of streets and sanitation, who reported to the director of public works, who in turn reported to the city manager. The city manager was responsible for determining the budget for public works, including the care and maintenance of the City's unimproved alleys. However, the city manager's determination still had to be approved by the city council.

When asked about the governmental structure of the City, Mr. Crabtree stated that the City has a home rule form of government, in which the mayor and aldermen make the policy determinations. The various city departments, including the public works department, then implement and carry out those policies.

According to Mr. Crabtree, the City did not maintain its unimproved alleys for pedestrian traffic; it maintained the alleys only for vehicular traffic. Mr. Crabtree testified that as soon as weather permitted in the spring, he would refit the City's snow removal equipment for grading and work with labor crews to regrade the City's unimproved alleys. He testified that it was his practice to make sure that the alley adjacent plaintiff's property was regraded each year prior to the City's Fourth of July parade because of increased pedestrian traffic in the area for the festivities. However, Mr. Crabtree also testified that he did not keep records demonstrating the progress of the annual regrading program, nor did he have any independent recollection that the alley had been regraded prior to July 10, 2004.

When a city resident calls to complain about the condition of an unimproved alley, Mr. Crabtree testified that he would typically go out to the site of the complaint within 48 hours of receiving the call. After examining the site, he would determine whether or not the area needed repair and, if it did, would place the location on his list of pending specific repairs. Only after the city-wide regrading program was complete would Mr. Crabtree perform specific repairs requested by residents. Mr. Crabtree testified that he did not have any record or independent recollection of Ms. Butkus's telephone calls and voice-mail messages complaining about the condition of the alley.

Plaintiff and Ms. Butkus placed their garbage containers in the alley, as opposed to someplace on their property, because the containers had always been in the alley and that was where the neighbors placed their garbage containers. In addition, Ms. Butkus testified, “that's where the city trucks pick it up.” Mr. Crabtree confirmed that the City would not pick up refuse, yard waste, or recycling from private property.² Pursuant to City ordinance, residents must place their garbage containers on the curb or alley line for pick-up. If a resident's property abuts an alley, then the resident must place his or her garbage containers in the alley. Only if a resident's property does not abut an alley may the resident place garbage containers on the street curb.

At trial, the City attempted to argue that plaintiff did not have to keep her garbage containers in the alley, that she instead could have placed the containers on a concrete pad next to her garage. However, in order to do that plaintiff would have had to pick up the large containers and place them over a fence. That would have been virtually impossible. When plaintiff and Ms. Butkus purchased the property in 2000, they performed several improvements on the property, including constructing a new two-car garage erecting a fence around the backyard, pouring a concrete pad outside the fence next to the garage, and installing a walkway from the kitchen door to the fence gate to the alley. The City argued that had plaintiff placed her garbage containers on the concrete pad, she could have walked through her backyard, into the garage, and out a garage door to the concrete pad thus avoiding the alley altogether. Plaintiff testified in response that it was far more convenient for her to take a direct route down her backyard path to the gate and out into the alley where the garbage containers were located and that, if she walked through her garage, she still would have had to walk in the alley.

After plaintiff rested her case, the City filed a motion for directed verdict arguing that (1) plaintiff was not an intended user of the alley and therefore the City did not owe her a duty of ordinary care pursuant to section 3-102 (745 ILCS 10/3-102 (West 2008)), (2) the City had no notice of the alleged pothole or depression in the alley, and (3) the City was immune from liability pursuant to section 2-201 (745 ILCS 10/2-201 (West 2008)). The trial court denied the City's motion on all three issues. Speaking specifically to the first issue raised by defendant, the trial court stated: “I think the plaintiff is an intended user.”

Plaintiff filed a motion for directed verdict after the City rested its case, arguing that (1) plaintiff was an intended user of the alley, (2) the City had notice of the condition of the alley prior to plaintiff's injury, and (3) the City failed to prove discretionary immunity pursuant to section 2-201 (745 ILCS 10/2-201 (West 2008)). When the trial court objected to the form of plaintiff's motion, instructing that a directed verdict is different from deciding an issue as a matter of law, plaintiff amended her motion for directed verdict to cover only the notice issue, and moved to strike the City's affirmative defenses that plaintiff was not an intended user and that the City had discretionary immunity. The trial...