Harding v. City of Highland Park

• Decision Date: 04 May 1992
• Docket Number: No. 2-91-0650,2-91-0650
• Citation: 169 Ill.Dec. 448,591 N.E.2d 952,228 Ill.App.3d 561
• Parties: , 169 Ill.Dec. 448 Kristin HARDING, Plaintiff-Appellant, v. The CITY OF HIGHLAND PARK, Defendant-Appellee. Second District
• Court: United States Appellate Court of Illinois

Page 952

591 N.E.2d 952

228 Ill.App.3d 561, 169 Ill.Dec. 448

Kristin HARDING, Plaintiff-Appellant, v. The CITY OF HIGHLAND PARK, Defendant-Appellee.

No. 2-91-0650.

Appellate Court of Illinois,

Second District.

May 4, 1992.

Aram A. Hartunian (argued), Steven P. Schneck, Hartunian, Futterman & Howard, Chtd., Chicago, Steven Levin, Trial Counsel, for Kristin Harding.

Michael F. Bonamarte III (argued), DeSanto & Bonamarte, P.C., Highland Park, for City of Highland Park.

Justice WOODWARD delivered the opinion of the court:

On June 8, 1987, plaintiff, Kristin Harding, brought suit against defendant, the City of Highland Park (City), for damages alleged to have been caused by plaintiff's fall into a water meter pit owned and maintained by defendant. The jury found for the plaintiff and awarded her damages in the amount of $76,310.70. The trial court entered judgment notwithstanding the verdict for the defendant, based on its conclusions that proof of actual or constructive notice of the dangerous condition was required by statute, separate from proof that the dangerous condition was directly caused by the City in the first place. In a supplemental order, the trial court granted defendant's motion for a new trial and entered a remittitur of $40,000.

On appeal, plaintiff raises the following issues: (1) whether the statute requires proof that defendant had notice of a dangerous condition, separate from proof that the City negligently caused the dangerous condition in the first place; (2) whether the jury's verdict was against the manifest weight of the evidence; (3) whether a remittitur of $40,000 was justified in this case; and (4) whether the testimony of the plaintiff's doctor concerning disability should have been excluded from the evidence. Because of our rulings on the first three issues, we need not address plaintiff's fourth contention.

Initially, we note our confusion regarding the trial court's orders in the appeal at bar. In our view, the court's entering a judgment notwithstanding the verdict should have concluded the case. The need for the granting of a new trial and entering a remittitur of $40,000 seems unnecessary in light of the judgment n.o.v. Having so stated, we will describe the relevant facts without further comment.

Also, we will note that plaintiff's complaint filed June 8, 1987, averred inter alia that defendant had actual or constructive notice of the dangerous condition which caused plaintiff's injury. At trial immediately prior to closing arguments, the court below granted plaintiff leave to file an amended complaint which averred that defendant's agents failed to secure properly the water meter pit lid after checking the water meter and, thereby, created the subject unsafe condition.

At the trial held in August 1990, John Shelton, a public works foreman for defendant, testified as an adverse witness in plaintiff's case. He stated that defendant maintained a water meter in the parkway in front of the Harding residence at 1244 Taylor Avenue, Highland Park. The water meter is situated in a pit which was five to six feet deep. Atop the pit is a circular cover made of cast iron. It measures 16 inches in diameter and is approximately five-sixteenths to three-quarters of an inch thick. The cover weighs four to five pounds. The removal of same requires a person to fit a screwdriver into the space between the lid and frame and then pry upwards and, finally, to pull the cover back. Defendant's water meter covers are intended to be walked on by pedestrians. The plaintiff could fall into the meter pit only if the cover is removed and then put back without being correctly reseated in the groove. The improper placement of the cover cannot be caused merely by weather or by someone walking across the water meter. Defendant's water department reads about 200 water meters per day. To prevent hazard to foot traffic, it is very important to replace a water meter cover carefully and to clean it of dirt.

Mr. Shelton further stated that water bills are based either on actual readings or estimates. The bill for the winter quarter is usually estimated, based on the arithmetic average of the three prior bills. However, a meter will actually be read (and reread) during winter if a resident complains about the amount. Rereadings and special readings are common.

Plaintiff testified that her injury occurred on January 22, 1987. At about 12 p.m., she was driven to her home, 1244 Taylor Avenue, by a friend from work. Plaintiff then borrowed her brother's truck and visited her grandmother in Highwood. Upon returning, she parked the truck on the street in front of her home. She got out of the truck and walked towards the front of the house. There was a covering of snow on the ground. The sun was shining and the temperature was below freezing.

Plaintiff stepped on the water meter cover in the parkway. It gave way, and plaintiff's right leg fell into the pit's opening up to her groin. Her right knee and pelvic area came into contact with the pit's rim. Her left leg was twisted behind her. In a great deal of pain, plaintiff was unable to extricate herself from this position and called for help. Family members eventually came to her aid, but they decided to call paramedics to remove her from the meter pit. Paramedics lifted her from the opening and took her to the Highland Park Hospital.

Thereafter, plaintiff received medical treatment but was unable to continue with her normal activities. Plaintiff no longer went bowling, jogging, walking or dancing, activities in which she had regularly engaged. Plaintiff could not walk up or down stairs, so she had to sleep on the first floor and be carried on stairways. For some months following the accident, plaintiff experienced constant pain in her right knee and right pelvis.

Plaintiff was primarily treated by Dr. Norman Cohen, a board-certified orthopedic surgeon. He first examined her on January 28, 1987. This initial examination revealed substantial pain with flexion of the right hip. Dr. Cohen noted bruises on the front of the right knee, as well as limitation of right knee flexion to 25 degrees. He diagnosed "[m]ultiple severe contusions or contusions of soft tissue injuries." Dr. Cohen immobilized plaintiff's right knee and prescribed crutches. Under Dr. Cohen's care, plaintiff received heat therapy and performed exercises that included leg bends and leg lifts. These measures did not relieve her pain or allow her to resume normal activity. Due to plaintiff's minimal improvement with conservative treatment, Dr. Cohen performed a right knee arthrogram which revealed a popliteal cyst, i.e., a collection of joint fluid behind the knee. Otherwise, the arthrogram was interpreted as normal. Dr. Cohen opined that the popliteal cyst resulted from the trauma plaintiff sustained in January 1987.

Plaintiff underwent arthroscopic surgery on July 21, 1987. Dr. Cohen's diagnosis of her condition was medial shelf plica syndrome and fiber arthrosis of the knee joint. In his opinion, these conditions were related to plaintiff's fall into the meter pit. He further opined that her symptoms were probably permanent.

Dr. Cohen examined plaintiff the day after this surgical procedure. He did not examine plaintiff again until April 23, 1990, at which time plaintiff complained of pain in her right knee that was exacerbated by weather changes and climbing or descending stairs. Plaintiff also described a sensation of weakness in her right knee. As to objective findings, Dr. Cohen observed some softening, degeneration and inflammation of the right kneecap's surface. Because plaintiff remained symptomatic since her fall into the meter pit, Dr. Cohen believed her condition was related to the subject injury. He also opined that plaintiff's knee condition was "[m]ore probably than not" permanent.

Following her arthroscopic surgery in July 1987, plaintiff's condition improved to the point she could walk short distances without pain. She followed an exercise regimen prescribed by Dr. Cohen of a 15-minute workout three or four times a week. Nevertheless, she was not able to resume physical activities, such as aerobics or long-distance walking, which she previously had enjoyed. Standing for long periods of time caused pain in her right knee. Also, weather changes caused her right knee to tighten, resulting in a throbbing pain. This happened on at least a weekly basis.

Harriett Harding, plaintiff's mother, testified that sometime in November 1986 she telephoned defendant to complain about her high water bill. She got the number from the telephone book. The first person who answered Mrs. Harding's call was identified as the defendant, and the call was then transferred to the water department. The next voice was identified as the water department. The water department employee promised to send someone out to read the Hardings' meter. Three or four days later, Mrs. Harding called defendant's water department again and was told that the water meter had been checked and that it was functioning properly. The water department employee suggested that there might be a leak in her house. Sometime after Christmas 1986, perhaps early in January 1987, Mrs. Harding saw a white vehicle with defendant's logo on it parked in front of her house. Two men dressed in winter coats were standing around the opening of the water meter lid, which had been removed. The men were looking into the pit. She saw them as she walked past the dining room window.

Mrs. Harding received a water bill dated January 6, 1987. Said bill indicated it was based on a regular reading rather than an "estimated" one. The balance due on said bill was $20.34, which was substantially lower than the previous two bills of approximately $43 and $67.

Plaintiff's brothers, Jeff and Joe Harding, and Mark Tazioli, Jeff's friend, all of whom were at the subject residence when the accident occurred, came to the plaintiff's aid after her...