Ortiz v. City of Chicago, No. 78-1093

• Court: United States Appellate Court of Illinois
• Writing for the Court: MEJDA; SULLIVAN, P. J., and WILSON
• Citation: 79 Ill.App.3d 902,35 Ill.Dec. 57,398 N.E.2d 1007
• Parties: , 35 Ill.Dec. 57 Maria ORTIZ, Individually, and Jamin Ortiz, by and through his mother and next friend, Maria Ortiz, Plaintiffs-Appellees, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.
• Decision Date: 21 December 1979
• Docket Number: No. 78-1093

Page 1007

398 N.E.2d 1007 79 Ill.App.3d 902, 35 Ill.Dec. 57 Maria ORTIZ, Individually, and Jamin Ortiz, by and through
his mother and next friend, Maria Ortiz,
Plaintiffs-Appellees,
v.
CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant. No. 78-1093. Appellate Court of Illinois, First District, Fifth Division. Dec. 21, 1979.

[79 Ill.App.3d 903]

Page 1009

[35 Ill.Dec. 59] William R. Quinlan, Corp. Counsel, Chicago (Daniel R. Pascale and Mary Denise Cahill, Asst. Corp. Counsels, Chicago, of counsel), for defendant-appellant.

Joseph R. Curcio, Chicago (Sidney Z. Karasik, Chicago, of counsel), for plaintiffs-appellees.

MEJDA, Justice:

Jamin Ortiz, a minor (plaintiff), and his mother brought this action for personal injuries and medical expenses allegedly caused by the negligence of the City of Chicago (defendant) in failing to remove an abandoned van from an alley. A jury awarded plaintiff $22,500 and the trial court entered judgment on the verdict. It is from that judgment that defendant appeals.

On June 29, 1972, plaintiff was burned on his left arm and his upper torso when the gas tank of a van which had been abandoned in an alley burst into flames. He brought this action against the defendant alleging that it carelessly and negligently failed to remove the van from the alley and that this failure was the proximate cause of his injuries. The following pertinent testimony was adduced at trial.

Mrs. Rivera, plaintiff's neighbor, testified that the van had been parked in the alley for approximately two months before the accident. The wheels were gone, the doors and windows were broken, and the van was stripped. She considered it dangerous because some children played around it. She called the police about four times and told them about the van and its danger to the children.

On the day of the accident, children were playing ball in the alley and Mrs. Rivera heard a loud noise and saw a flash of light. She saw plaintiff standing in the alley with his clothes afire. The next day the van was removed. There was a police station about 11/2 blocks from her house.

Carmen Rios, another of plaintiff's neighbors, testified that the van had been in the alley for about 2 to 21/2 months. She had called the police two or three times to tell them about the van. She had also stopped squad cars to complain about the van. On the day of the accident she did not hear any firecrackers exploding. The van was towed from the alley on the following day.

Mrs. Whittle, who lived near plaintiff, testified that the van had been [79 Ill.App.3d 904] in the alley for several months and had two tow tickets on it. She had also called the police several times to inquire why the van had not been towed. She did not hear any firecrackers on the day of the accident.

Gilbert Ortiz, plaintiff's older brother, testified that the van had been in the alley for 21/2 to 3 months and was stripped.

Plaintiff testified that he was born on August 13, 1961. On June 29, 1972, he had just finished delivering papers on his daily route and was on his way home when the accident occurred. He stopped in the alley to play catch with some friends and then walked past the van. As he was walking next to the van he heard an explosion and he caught fire. He ran until a woman put a cover over him to smother the fire.

He could not remember if any of the boys in the alley were playing with firecrackers before the accident but stated that he was not. In response to defense counsel's question if plaintiff knew what caused the fire that burned him, plaintiff answered, "They sat (sic) it was a firecracker." Plaintiff's counsel objected and the answer was stricken as hearsay and the jury was instructed to disregard it.

David Ortiz, plaintiff's brother, testified that before the explosion he was playing catch with plaintiff and his friends. About ten minutes after plaintiff left to go home, there was an explosion and he saw that his brother was afire. He also stated that the van had been parked in the alley for three to four months. He denied speaking to any police officers after the accident and specifically to Officer Cristia. He denied that he, plaintiff, or any other boy had been playing with firecrackers before the accident.

For the Defense

Chicago police officer Newman of the Auto Pound Section testified that cars to be

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[35 Ill.Dec. 60] towed are classified as immediate or abandoned tows. Immediate tows include stolen cars and cars involved in accidents which are immediate traffic hazards. Each police district has men assigned to locate abandoned cars, write tow reports, and give them to a foreman who assigns trucks to tow the cars to a City auto pound. In 1972, there were 2786 abandoned vehicles and 1964 immediate tows in plaintiff's police district. At that time the district had one or two trucks to tow abandoned cars and were aided by private trucks and trucks from the Department of Streets and Sanitation. Officer Newman acknowledged that according to police policy, the ordinance and statutes authorizing the towing of vehicles were vigorously enforced. He agreed that the Police Department defines a "hazard" as a vehicle located on a public way in such a manner as to constitute a clear and present danger to the safety of the community or an obstruction to the normal thoroughfare of traffic. He [79 Ill.App.3d 905] also agreed that an "abandoned tow" is a vehicle unused or unmoved for a period of seven days.

Chicago police officer Fleming testified. At the time of the accident he was an abandoned auto officer in plaintiff's district. His duties included locating abandoned cars, writing a tow report, and seeing that the cars were towed. In June 1972, there were two abandoned auto officers in the district. He stated that he had no knowledge of the towing of a Ford van from the scene of the accident on June 29, 1972, and that any tow report would have been destroyed within a year of the tow. In 1972 the number of trucks in the district varied from two to five. Since the police department had no trucks of their own, private trucks and trucks from the Bureau of Streets and Sanitation are used for towing purposes.

Chicago police officer Cristia testified that he investigated plaintiff's accident but did not have an independent recollection of his investigation. By referring to his report of the incident, he stated that he spoke with David Ortiz following the accident. At this point plaintiff's counsel objected to questions regarding the substance of the...