Lewis v. W. F. Smith & Co.

• Decision Date: 20 April 1979
• Docket Number: No. 78-515,78-515
• Citation: 28 Ill.Dec. 57,390 N.E.2d 39,71 Ill.App.3d 1032
• Parties: , 28 Ill.Dec. 57 Mary Lee LEWIS, Plaintiff-Appellee, v. W. F. SMITH & CO., a corporation, and Clara Peters, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 39

390 N.E.2d 39

71 Ill.App.3d 1032, 28 Ill.Dec. 57

Mary Lee LEWIS, Plaintiff-Appellee, v. W. F. SMITH & CO., a corporation, and Clara Peters Defendants-Appellants.

No. 78-515.

Appellate Court of Illinois, First District, Fifth Division.

April 20, 1979.

[28 Ill.Dec. 58] Brody, Gore & Fineberg, Ltd., Chicago (Michael H. Berman, Chicago, of counsel), for defendants-appellants.

Sidney L. Robin, Ltd., Chicago, for plaintiff-appellee.

MEJDA, Justice:

Plaintiff, Mary Lewis, brought suit to recover for personal injuries sustained in a fall on the front stairs of the apartment building in which she lived. The building was owned by defendant, Clara Peters, and was managed by defendant, W. F. Smith & Co. A jury returned a verdict in favor of plaintiff in the amount of $16,832.75 and defendants appealed, contending that: (1) it was error to deny defendants' motion for a directed verdict in that there was no duty on defendants to remove ice and snow from the stairs and that the absence of handrails could not be considered the proximate cause of plaintiff's injury; (2) the trial court erroneously refused to admit the testimony of a building inspector regarding the conformity of the stairs with the Municipal Code of the City of Chicago; and (3) the jury was improperly instructed as to the issues in the case and the definition of proximate cause. We reverse and remand.

The accident in which plaintiff was injured occurred on December 13, 1972, at approximately 12:45 p. m. The United States Weather Report for December 1972, which was admitted into evidence, discloses that on December 12, 1972, snow began falling in the early morning hours. By 6:00 a. m. December 12, the snow was mixed with freezing rain and ice pellets. The temperature gradually rose above the freezing mark, and only rain fell from noon until the precipitation stopped around 8:00 p. m. A total of 1.76 inches of water fell that day. The temperature began to fall below freezing by midnight dropping to a low of 16o F between 6:00 a. m. and 9:00 a. m. on December 13. At noon on December 13 the temperature was 21o F. The report characterized the weather types on December 12 as fog, ice pellets and glaze, with smoke and haze. The weather type on December 13, the day of the accident, was glaze with smoke and haze.

Plaintiff testified that on December 13, 1972, she left for work at about 1:00 p. m., leaving through the front door of the apartment building. It was snowy and icy all over but no rain or sleet was falling. Plaintiff was wearing boots and carried her purse on her left shoulder. She started down the right side of the stairs, holding the step-like brick wall which formed a border alongside the stairs. As she stepped from the first step to the second, her feet went out from under her. There was nothing to hold on to at that point, and she fell to the foot of the stairs, her leg turning to the side and her right knee striking the bottom stair. She was helped up by a passerby who walked her to the corner after she stood for a while. Plaintiff flagged a cab at the corner and proceeded on to work.

Plaintiff worked at a restaurant from 2:00 p. m. to 10:00 p. m. but left work that day at about 9:30. Her leg had been numb, so she returned home and took a hot bath. The following day she went to the emergency room at St. Bernard's Hospital where she was examined and the leg was X-rayed and bandaged. She was given crutches and medication and referred to one Dr. Wright, whom she visited five times between December 19 and March 29. She was on crutches the entire time and did not return to work until March 4. Plaintiff was then treated by a Dr. Woods, seeing him three times between June and November of 1973. After Dr. Woods moved out of state, plaintiff was treated by Dr. Kishan Chand.

Plaintiff was examined by Dr. Chand, X-rays of the knee were again taken, and plaintiff was admitted to Jackson Park Hospital on February 15, 1974. She was discharged on March 2, 1974, following surgery on her knee. Plaintiff's leg was in a cast when she was discharged from the hospital, and she used crutches when she walked. The cast was removed after six to eight weeks, but plaintiff remained on crutches for another four or five weeks and then walked with a cane for a couple of months. She was unable to work during that time. She testified that she did not work in 1974 or 1975, returning to work about a year after the surgery. Although plaintiff again worked in a restaurant, her new work was limited to making salads. She had also undergone therapy for a few months, first going twice a week, later going only once each week. Her knee was all right at the time of trial, plaintiff said, except that it sometimes got stiff in cloudy weather. Evidence of plaintiff's medical expenses and income was admitted, as were some pictures of the building's front porch.

On cross-examination plaintiff testified that she had moved to the apartment building in May 1970. On December 12, 1973, the day before she fell, it was snowing heavily "like freezing," but she had no problem with the stairs then. The ground was snowy and icy when she returned from work that day, and again she had no problem with the stairs. It was not snowing on December 13, plaintiff testified, either when she awoke or when she left for work. She saw no change in the condition of the stairs from the night before. Plaintiff also stated that she was not wearing her glasses when she left for work. Using a photograph which showed that the front porch had a stone step landing at the doorway that extended the width of the porch, a broad first step and four other steps leading to the sidewalk, plaintiff stated that she was holding one of the step-like brick walls alongside the porch as she stepped down. She slipped as she went from the first to the second step and let go of the wall as she began to slip. Arnold Blair Kominsky, an architect, testified for plaintiff that there was no handrail on the stairway and that the top of the brick wall ran parallel to the ground and was 24 1/2 inches above the first step. The court took judicial notice of an ordinance of the City of Chicago which required that a handrail not less than 30 inches above each step be placed along the stairway. It was stipulated that the ordinance was applicable to the building. Plaintiff also offered the testimony of Dr. Kishan Chand, an orthopedic surgeon and her treating physician, as to the nature, extent and treatment of her injury.

Ted Mozden, the managing agent of the apartment building, was called by plaintiff as an adverse witness under section 60 of the Civil Practice Act. (Ill.Rev.Stat.1975, ch. 110, par. 60.) He testified that there were no handrails on the front stairs and that he had the authority to order their installation. He further testified that there was a non-resident janitor who went to the building twice a day, arriving in the morning between 5:30 a. m. and 7:00 a. m. Part of the janitor's job was to see to the removal of snow, for which he was provided certain equipment. A shovel, ice chopper and rock salt were stored in the boiler room, which was kept locked when the janitor was not there, and only the janitor and the managing agent had keys to the boiler room. Some cinders were kept outside. Mozden was notified of the fall by plaintiff's phone call the day after she fell. He then spoke to the janitor and went to the building, where he found the steps to be clear, damp and salted. George Harris, the building janitor at the time of plaintiff's fall, was also called under section 60 and testified that he recalled an ice storm in December 1972 although he could not remember the exact date. Harris did remember that he was unable to remove the ice and therefore put some salt on the steps and cinders on the sidewalk.

Defendant Clara Peters, who owned the building at the time of the accident, testified that she had never seen the property and that she first found out about the accident when she was served with notice of plaintiff's lawsuit. George Harris was called by defendants and testified that he had been a janitor for 15 years. It was still sleeting and snowing when he first put the salt on the stairs, he said. He was unable to remove the ice until after the precipitation stopped, and did so about 10:00 a. m. a day or two after the storm. Defendants next called John E. Neighbors, a code enforcement inspector for the Chicago Building Department, as an expert witness. After objections to the questions propounded, defendants made an offer of proof that, if allowed, Neighbors would testify that the steps were in conformity with the building code because the purpose of the railings is to prevent a fall over the side of the stairs, and that purpose was met by the brick step-walls. Defendants also presented expert testimony as to the extent of plaintiff's injury.

The case was submitted to a jury which returned a verdict in favor of plaintiff and awarded her $16,832.75 in damages. The jury also answered three special interrogatories, finding that plaintiff was not contributorily negligent and that both defendants failed to exercise ordinary care to keep the front stairs of the apartment building in a reasonably safe condition. Judgment was entered on the jury's verdict. Following denial of their post-trial motion, defendants appealed.

OPINION

We must preliminarily note plaintiff's contention that defendants are conclusively bound by the answers to the special interrogatories because they were not challenged in their post-trial motion. However, defendants have based their appeal on trial error rather than on the manifest weight of the evidence, and the interrogatories therefore are not controlling. (O'Brien v. Walker (1977), 49 Ill.App.3d 940, 945, 7 Ill.Dec. 372, 376, 364 N.E.2d 533, 537; Blakely v. Johnson (1976), 37 Ill.App.3d 112, 116, 345 N.E.2d 814, 816.) Accordingly, we will consider the merits of the case.

Defendants...