Palermo v. City of Chicago Heights

• Decision Date: 12 November 1971
• Docket Number: Gen. No. 55019
• Citation: 276 N.E.2d 470,2 Ill.App.3d 1004
• Parties: Norma Jean PALERMO, Plaintiff-Appellee, v. CITY OF CHICAGO HEIGHTS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 470

276 N.E.2d 470

2 Ill.App.3d 1004

Norma Jean PALERMO, Plaintiff-Appellee, v. CITY OF CHICAGO HEIGHTS, Defendant-Appellant.

Gen. No. 55019.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 12, 1971.

Scariano & Gubbins, Chicago Heights (Michael P. Duncan, Chicago Heights, of counsel), for defendant-appellant.

Stanley J. Horn and Steven B. Randall, Chicago (Gabriel Aprati, Chicago Heights, of counsel), for plaintiff-appellee.

DRUCKER, Justice.

Defendant appeals from a judgment awarding plaintiff $5500 for personal injuries received when plaintiff fell into a water meter box maintained by defendant on a parkway. The case was tried without a jury.

On appeal defendant contends: (1) that the defendant had neither actual nor constructive notice of the defective water meter cover; (2) that defendant was free from negligence as a matter of law; and (3) that plaintiff was guilty of contributory negligence as a matter of law.

On September 25, 1967, plaintiff drove her car to 1443 East End Avenue, Chicago Heights, Illinois, to visit her friend, Mrs. Ida Alexander. East End Avenue runs in a north-south direction and plaintiff parked her car, facing north, on the east side of the street, the side on which Mrs. Alexander's house was located. Plaintiff arrived at the house at about 6:00 P.M.

The pertinent testimony is as follows: Plaintiff testified that there was a curb running north and south in front of the house next to which she parked. A sidewalk ran in front of the house parallel to the curb. Between the curb and sidewalk was a parkway. A cement crosswalk ran in an east-west direction extending from the street curb to the sidewalk. Plaintiff parked her car 'a little bit south' of this cement crosswalk. She got out of her car on the passenger side since the driver's door was broken. She crossed the parkway and went into the house. She did not notice the meter box.

Plaintiff visited with Mrs. Alexander and then left at about 7:40 P.M. It was twilight and the visibility was good. She left by the back door which was on the south side of the house and walked west on a path to the sidewalk. She opened the gate in front of the house and crossed the sidewalk 'proceeding to my car.' While crossing the parkway she 'stepped on a lid and it tilted and * * * flipped over * * *.' Plaintiff's right leg went into the hole up to her buttocks. She did not see the lid prior to stepping on it. She had been looking at her car door.

On cross-examination plaintiff stated that she had previously visited the Alexanders' house about ten times but had never noticed the water meter box. The meter box was located in the parkway about two feet south of the cement crosswalk which ran from the street curb to the sidewalk. The passenger door of her car was 'back a little ways' from the cement crosswalk. The path leading from the Alexanders' back door to the sidewalk was two sidewalk squares south of the crosswalk. There was a tree 'fairly close' to the water meter box. She described the lid as about the size of a ten inch pizza and assumed that it was partly on because as soon as her toe hit it she went straight down and the lid flipped over. As a result of the fall plaintiff suffered soft tissue injuries requiring hospitalization. She also lost time from work.

Mrs. Ida Alexander testified for the plaintiff. She and her husband resided at 1443 East End Avenue, Chicago Heights, Illinois. Four weeks before the accident she observed that the lid '(w)asn't all the way on. It was holding on with one screw, a bolt, or whatsoever you would call it. And all you had to do was just knock it aside. If you touched it, it would fall off.'

Over defendant's objection Mrs. Alexander stated that her husband had telephoned the 'water company' approximately six weeks before the date of the accident to complain about the condition of the lid. She was sitting next to her husband when he made the call. On cross-examination Mrs. Alexander said that she heard her husband say into the phone, 'Will you send someone down here to fix this water hole because the cap is off of it and we have a lot of small children in the back and some of them might fall in it.' She did not know what number her husband had dialed. Her husband subsequently said that someone did come out and they did do something to the water hole but it didn't last long. She did not know how long the cover remained fixed but that her husband was awfully angry about it. She never noticed what they did to fix it but it was not fixed when she went to the hospital two weeks prior to the accident. She stated that kids were playing in it but did not know if they played with it after defendant had been out to fix it.

Her husband was not present at the trial having gone to a funeral.

Joseph Faso testified for the defendant. He is the City Commissioner of Waterworks. He described the particular water meter as covered by a steel lid about eleven or twelve inches in diameter and protruding one and one-half inches above the ground. The steel lid is bolted down exactly in the center. The meter was located on the south side of a three foot wide crosswalk which ran from the street curb to the sidewalk. The meter was 'on the outside of this crosswalk at approximately five to six feet from the curb.' The records of his department showed that no complaint was registered prior to the date of the accident regarding the condition of the water meter box. Meter boxes are inspected on a quarterly basis unless a specific complaint is made to the water department.

Over plaintiff's objection Faso testified that Mr. Alexander came to see him at...