Livings v. City of Chicago

• Decision Date: 26 February 1975
• Docket Number: No. 58679,58679
• Citation: 26 Ill.App.3d 850,326 N.E.2d 170
• Parties: Lucien LIVINGS, Plantiff-Appellee, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 170

326 N.E.2d 170

26 Ill.App.3d 850

Lucien LIVINGS, Plantiff-Appellee, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.

No. 58679.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 26, 1975.

Richard L. Curry, Corp. Counsel, Chicago, for defendant-appellant (William R. Quinlan, Harvey N. Levin, Asst. Corp. Counsel, Chicago, of counsel).

Philip E. Howard, Ltd., Chicago, for plaintiff-appellee (William J. Harte, Chicago, of counsel).

BURMAN, Justice.

The plaintiff, Lucien Livings, brought an action against the City of Chicago to recover damages for personal injury alleged to have been incurred as a result of the negligence of the city in maintaining a city sidewalk. On August 16, 1972, a jury verdict was rendered in favor of the plaintiff, assessing damages at $100,000.

The city appeals, contending (1) that the court erred in refusing to give a requested instruction to the jury delineating the requirement that the city have actual or constructive notice of the condition of the sidewalk to be held liable, and (2) that the $100,000 judgment is excessive.

At trial the plaintiff called four witnesses. The city presented none. The plaintiff, 57 years old at the time of trial, testified on his own behalf that at about 4:00 P.M. on Sunday, August 4, 1968, he left his residence at 3751 South Wood Street in Chicago to go for a stroll in the neighborhood with no particular destination in mind. About two years previously he had developed some 'trouble' with his right ankle, and so he customarily used a 'walking stick' or cane for support, as he did on this day. About two short blocks from his home, as he walked north on Paulina, he approached a hole in the sidewalk in front of 3740 South Paulina which he had seen on other occasions. On this date he first saw the hole, which was about two and one-half inches deep, from a distance of about ten feet. He attempted to use the ribbon of stable sidewalk to the left of the hole. As he was abreast of the hole a boy heading south on a bicycle approached him from ahead and called to him 'to look out.' He moved to the right, toward the hole, to let the boy pass on his left. In so doing his cane hit an upraised portion of the sidewalk throwing him off balance and causing his cane to slip into the hole, and he fell on his right side. He lay there in terrible pain from the knee half way up the thigh on his right leg for about three minutes before a passer-by helped him up and took him to the steps of a nearby house. The man then left to call an ambulance.

About a half an hour or more later the police arrived in a patrol wagon, put the plaintiff on a stretcher, and took him to the County Hospital. He was still in errible pain. The doctors at the hospital took X-rays, which indicated a completely fractured right thigh bone (or femur). A pin was inserted below the knee of his right leg. His leg was put in traction and remained so for ten weeks, during which time he had to continually lie on his back in bed. Upon being removed from traction, he was put in a body cast which extended from the bottom of the right foot all the way up to his chest. He was released from the hospital a few days after the cast was applied, but it was kept on for two months, during which time he remained bedridden at home. Other testimony regarding the nature and extent of his injuries will be discussed below.

Kathleen Nowak testified that she resided at 3748 South Paulina on the day of the accident and had lived there for twenty years. This was two doors south of where the plaintiff fell. She walked by there every day and stated that the defect in the sidewalk shown in the exhibits had existed for 'one or two years' before August 1968. She further said that she did not know the plaintiff nor anything about his accident.

The only other witnesses, both also appearing on behalf of the plaintiff, were Bessie Havlan, a librarian employed by the County Hospital who identified the X-rays of the plaintiff which were admitted into evidence, and Doctor Allen Hirschtick, a certified orthopedic surgeon who examined the plaintiff.

At the close of the evidence, the city tendered the following instruction for the jury.

'The Jury are (sic) insructed that before a municipality can be held liable for a condition in its streets or sidewalks, it must be shown that the City had actual notice of such condition or that such condition had existed for so long a time that the City in the exercise of ordinary care should have had notice of same and should have had reasonable time to remedy same.'

The instruction was drawn to reflect the rule that a local public entity is only liable if it has either actual or constructive notice of the defect for a sufficient time prior to an injury to have corrected the condition. (See Ill.Rev.Stat.1971, ch. 85, par. 3--102.) The trial court refused the instruction and the city bases its first allegation of error on that refusal.

The city stresses that a litigant has a right to have instructions submitted to the jury in accordance with the law governing the case. With this fundamental rule we are naturally in accord. (Blanchard v. Lewis, 414 Ill. 515, 112 N.E.2d 167.) It is well established that failure to give a party the right to have the jury instructed upon his theories of recovery or defense may require reversal. (Sims v. Chicago Transit Authority, 7 Ill.App.2d 21, 129 N.E.2d 23.)

We first point out, however, that the issue of notice was amply brought to the jurors' attention in the instructions given to them. The 'issues made by the pleadings' instruction (IPI2d 20.01) indicated that the plaintiff alleged negligence on the part of the city in that it '(s)uffered and permitted said sidewalk to be and remain out of repair * * * of which dangerous condition the defendant knew or in the exercise of ordinary care ought to have known.' Under a separate instruction the jury was informed that it was the plaintiff's burden to prove the claims made in the issues instruction.

We further point out that the plaintiff's evidence in regard to notice was uncontradicted, and so sufficiently strong that the trial court might well have found that the city had constructive notice as a matter of law.

In this regard we recognize that generally whether a defect in a public sidewalk has existed a sufficient length of time prior to the injury for the city to be deemed to have constructive notice is a question of fact for the jury. The city cites for this proposition Trojan v. City of Blue Island, 10 Ill.App.2d 47, 134 N.E.2d 29, and Baker v. Granite City, 311 Ill.App. 586, 37 N.E.2d 372. Neither of these cases, however, stands for the proposition that the question of whether a city has had notice of a defect must always be left for the jury.

In Trojan the only testimony regarding the length of time a defect in a sidewalk had existed was that of the plaintiff's son, who had been with the plaintiff when she fell. He said that 'from his observation he would estimate that the hole had been there for a period of one to two months. He admitted it was hard to tell, but felt it was there at least a month.' 10 Ill.App.2d at 49, 134 N.E.2d at 30. The Court, in affirming a jury verdict for the plaintiff, held that the son's statement about being doubtful as to the precise length of time the defect existed did not destroy the value of his testimony and whether the defect had existed for a sufficient time to constitute constructive notice to the city of its existence was for the jury to decide. In Baker, the plaintiff was injured when while walking on a public sidewalk, she stepped on the cover of a catch basin, the cover tilted, and she fell into the basin. The plaintiff testified that before stepping on it, the cover 'looked all right, and there was nothing apparently wrong with it,' but that after falling she discovered that the rim around the basin on which the cover rested was 'filled with rust and corrosion,' and that the lower edge of the cover was worn 'as thin as a piece of cardboard.' 311 Ill.App. at 588--89, 593, 37 N.E.2d at 373, 375. City employees testified that the lid was put on new about six months before the accident, and no inspection was made in the interim. There was no direct evidence that the complained of condition had existed for any specific length of time prior to the accident. In reversing a judgment for the defendant notwithstanding the verdict the court held, on the state of that record, that it was peculiarly within the province of the jury to determine whether or not the alleged defective conditions were of such a character and had existed for such a length of time that the defendant might have discovered and remedied them, and to determine whether or not the defendant was negligent in this respect.

In the above cases there was apparent some dispute with respect to the defective condition, whether in regard to it's conspicuousness, the length of time it existed, or indeed if in fact it did exist. (See also Palermo v. City of Chicago Heights, 2 Ill.App.3d 1004, 276 N.E.2d 470, also cited by the defendant.) No such genuine dispute exists in the instant case. The undisputed and uncontradicted evidence is that the deteriorated portion of the sidewalk was...