Stein v. Chicago Park Dist.

• Decision Date: 22 June 2001
• Docket Number: No. 1-00-0119., No. 1-99-3987
• Parties: Leona STEIN, Plaintiff-Appellee and Cross-Appellant, v. The CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

752 N.E.2d 631

323 Ill. App.3d 574

256 Ill.Dec. 751

Leona STEIN, Plaintiff-Appellee and Cross-Appellant, v. The CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant-Appellant and Cross-Appellee.

Nos. 1-99-3987, 1-00-0119.

Appellate Court of Illinois, First District, Sixth Division.

June 22, 2001.

Justice O'BRIEN delivered the opinion of the court:

Defendant, the Chicago Park District, appeals the jury's verdict in favor of plaintiff, Leona Stein, on plaintiff's negligence action. Plaintiff cross-appeals. On appeal, defendant argues that the circuit court erred in (1) denying its motion for judgment notwithstanding the verdict based on section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-106 (West 1998)); and (2) denying its posttrial motion to file amended affirmative defenses. On cross-appeal, plaintiff argues that the jury's award of damages was inadequate because (1) the jury failed to award her any of her medical expenses; and (2) the jury improperly found her to be 50% contributory negligent. Plaintiff also argues that the circuit court erred in allowing testimony as to certain allegedly irrelevant comments made by plaintiff's husband. We affirm on the appeal and the cross-appeal.

At about 10 a.m. on June 11, 1994, plaintiff was walking on a sidewalk just south of Monroe Street and west of Lake Shore Drive in the area of Butler Field in Grant Park. As plaintiff proceeded southbound on the sidewalk, she tripped over a watering hose that had been stretched across the sidewalk by two Park District employees who were watering plants at the northeast corner of Butler Field.

Plaintiff filed a negligence and willful and wanton action against defendant. The jury returned a verdict in favor of defendant on the willful and wanton claim and a $406,600 verdict in favor of plaintiff on her negligence claims. The jury reduced the verdict to $203,300 to reflect plaintiff's 50% contributory negligence. The circuit court subsequently entered an amended judgment awarding plaintiff $256,288.75. Defendant appealed. Plaintiff cross-appealed.

I. Defendant's appeal

On appeal, defendant argues that the circuit court erred in denying its motion for judgment notwithstanding the verdict on plaintiff's negligence claims. A judgment notwithstanding the verdict judgment n.o.v. should be entered only when all of the evidence, viewed in the light most favorable to the non-moving party, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967).

Defendant argues that judgment n.o.v. is appropriate here because section 3-106 of the Tort Immunity Act immunizes defendant from liability in negligence for plaintiff's injury. Section 3-106 states:

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." 745 ILCS 10/3-106 (West 1998).

Plaintiff does not dispute that defendant is a local public entity and that the Grant Park sidewalk upon which she fell is "public property intended or permitted to be used for recreational purposes." 745 ILCS 10/3-106 (West 1998). Plaintiff's argument is that the hose which caused her injury was not a "condition" of Grant Park that would immunize defendant from liability under section 3-106.

In determining whether the hose was a "condition of any public property," we must construe section 3-106. Because the construction of a statute is a matter of law, review is de novo. City of Chicago v. Illinois Commerce Comm'n, 286 Ill.App.3d 557, 559, 221 Ill.Dec. 754, 676 N.E.2d 275 (1997).

The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. City of Chicago,286 Ill.App.3d at 559,221 Ill.Dec. 754,676 N.E.2d 275. The most reliable indication of legislative intent is the language of the statute itself. People v. Ellis, 296 Ill.App.3d 862, 865, 231 Ill.Dec. 272, 696 N.E.2d 1 (1998). In interpreting a statutory provision, words should be given their plain and ordinary meaning. Ellis, 296 Ill.App.3d at 865,231 Ill.Dec. 272,696 N.E.2d 1. The dictionary can be used to ascertain the ordinary and popular meaning of words. Ellis, 296 Ill.App.3d at 865,231 Ill.Dec. 272,696 N.E.2d 1.

A "condition" is part of the property's "mode or state of being" (see American Heritage Dictionary, 290 (3d coll. ed.1993)), i.e., part of the property itself. Examples of such conditions of property include restroom facilities within a park (Annen v. Village of McNabb, 192 Ill. App.3d 711, 139 Ill.Dec. 669, 548 N.E.2d 1383 (1990)), a steel barricade barring unauthorized vehicles from a recreational area (Kirnbauer v. Cook County Forest Preserve District, 215 Ill.App.3d 1013, 159 Ill.Dec. 499, 576 N.E.2d 168 (1991)), wires used to straighten and support trees (Straub v. City of Mt. Olive, 240 Ill.App.3d 967, 180 Ill.Dec. 603, 607 N.E.2d 672 (1993)), and a 100 pound concrete parking abutment "car stop" in a parking lot (Sylvester v. Chicago Park District, 179 Ill.2d 500, 228 Ill.Dec. 698, 689 N.E.2d 1119 (1997)).

Here, the hose was moved from place to place within the park to water plants, then returned to storage at the end of the day. Unlike the restroom facilities in Annen, the steel barricade in Kirnbauer, the wires in Straub, or the car stop in Sylvester, the watering hose at issue was not affixed to the property in such a way as to become a part of the property itself. Since the hose was not part of the property, it was not a "condition" thereto and section 3-106 therefore does not apply.

Next, defendant argues that the circuit court erred in denying its motion for judgment n.o.v. because the evidence in the record does not support a negligence verdict. The jury was given the following issues instruction as to negligence:

"The plaintiff claims that she was injured and sustained damage and that the defendant was negligent in one or more of the following respects:

a. Failing to place warning signs at or near the water hose that it had placed across the sidewalk; or

b. Placing an inadequate warning device at or near the water hose that it had placed across the sidewalk."

Plaintiff and several postoccurrence witnesses testified that they saw no warning sign at or near the hose. Said evidence was sufficient to support a verdict that defendant failed to place warning signs at or near the hose; viewed in the light most favorable to plaintiff, the evidence does not so overwhelmingly favor defendant that no contrary verdict could stand. Pedrick, 37 Ill.2d at 510, 229 N.E.2d 504.

Next, defendant has filed a motion pursuant to Supreme Court Rule 362 (155 Ill.2d R. 362) asking leave to file amended affirmative defenses based on sections 2-109, 2-201, and 3-108(a) of the Tort Immunity Act, which provide immunity for discretionary decisions and for supervisory...