Thorsen v. City of Chicago, s. 77-753

• Citation: 392 N.E.2d 716,74 Ill.App.3d 98,30 Ill.Dec. 61
• Decision Date: 10 July 1979
• Docket Number: 77-1412,Nos. 77-753,s. 77-753
• Court: United States Appellate Court of Illinois
• Parties: , 30 Ill.Dec. 61 James P. THORSEN, Plaintiff-Appellee-Cross-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, Maurice Phipps, Philip Barone, and James Kane, Defendants-Appellants, and Seymour S. Goldstein and Presbitero & Sons, Inc., a corporation, Defendants- Cross-Appellees, and Claudia Lofton et al., Defendants.

Page 716

392 N.E.2d 716

74 Ill.App.3d 98, 30 Ill.Dec. 61

James P. THORSEN, Plaintiff-Appellee-Cross-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, Maurice Phipps Philip Barone, and James Kane, Defendants-Appellants and Seymour S. Goldstein and Presbitero & Sons, Inc., a corporation, Defendants- Cross-Appellees and Claudia Lofton et al., Defendants.

Nos. 77-753, 77-1412.

Appellate Court of Illinois, First District, Second Division.

July 10, 1979.

Rehearing Denied Aug. 2, 1979.

Ritsos & Ritsos, Chicago, for plaintiff-appellee-cross-appellant; David Alswant, Chicago, of counsel.

William R. Quinlan, Corp. Counsel, Chicago, for defendant-appellant City of Chicago; Daniel Pascale, Philip L. Bronstein, Mary Denise Cahill, Asst. Corp. Counsels, Chicago, of counsel.

Stern & Rotheiser of Chicago, for defendants-appellants; James M. Dupree, Chicago, of counsel.

Lord, Bissell & Brook, Chicago, for defendant-cross-appellee Seymour S. Goldstein; Cornelius P. Callahan, Hugh C. Griffin, Chicago, of counsel.

Querrey, Harrow, Gulanick & Kennedy, Ltd., Chicago, for defendant-cross-appellee Presbitero & Sons, Inc.; Victor J. Piekarski, John F. Skeffington, Chicago, of counsel.

STAMOS, Presiding Justice:

Plaintiff, James P. Thorsen, brought this action to recover damages for personal injuries sustained when plaintiff was struck by an automobile as he was walking down the west side of Larrabee Street in Chicago, Illinois. Those named as defendants included Claudia Lofton, the driver of the vehicle; the City of Chicago (the City), which allegedly failed to maintain a sidewalk on the west side of the street, thus making it necessary for pedestrians to use the street; Seymour S. Goldstein (Goldstein), the supervising architect of the construction project that was taking place on City-owned land adjacent to the west side of Larrabee Street; various contractors, including M-Z Construction Co., Presbitero & Sons, Inc. (Presbitero), Shamrock Electric Co., Inc. (Shamrock), and Maloney Plumbing Co., Inc. (Maloney), whose trailers, equipment, building material, and debris allegedly blocked the path where the sidewalk had been; and Maurice Phipps, Philip Barone, and James Kane (The Dram Shop defendants), who allegedly sold the liquor that caused the intoxication of Claudia Lofton, by reason of which she struck plaintiff with her automobile.

A jury trial ensued. At the close of plaintiff's case, the trial court granted the motions of Goldstein and Presbitero for directed verdicts, as well as the motion of M-Z Construction Co. for summary judgment. Near the end of trial, plaintiff moved to dismiss Maloney and Shamrock, which motion was granted with prejudice. Plaintiff's motion to dismiss Claudia Lofton, who never appeared at trial, was also granted. The jury returned a verdict of $150,000. Judgment in that amount was entered against the City, but the court reduced the amount that could be recovered from the Dram Shop defendants to $15,000.

The City and the Dram Shop defendants have appealed, raising the issue of whether the conduct and remarks of plaintiff's counsel throughout the trial were so improper, outrageous, and prejudicial that defendants were denied a fair trial. The City has also raised issues relating to whether it owed a duty to maintain a sidewalk or provide a safe means of pedestrian travel; whether its failure to do so was the proximate cause of plaintiff's injury; and whether plaintiff was contributorily negligent. Plaintiff has filed a cross-appeal, raising the issues of whether the court erred in directing a verdict in favor of Goldstein and Presbitero; in denying plaintiff's motion that Goldstein be taxed with certain expenses and fees pursuant to section 41 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 41); and in holding that plaintiff's recovery from the Dram Shop defendants is limited to $15,000. Plaintiff has also raised an issue with regard to the relief sought by the City and the Dram Shop defendants in their notices of appeal.

The following pertinent testimony was adduced at trial. The incident in question occurred approximately midway down the west side of Larrabee Street between Dickens and Webster in Chicago at about 2 o'clock in the early morning of May 9, 1972. Larrabee is a north-south street with two lanes of traffic running in each direction. The land abutting the west side of the street, described as a large vacant tract, was owned by the City at the time of and before the occurrence. Plaintiff introduced evidence tending to show that about three years prior to the occurrence, the sidewalk on the west side of Larrabee had been completely removed. Although two of the City's witnesses testified that they thought there still was a sidewalk on the day in question, in sworn answers to interrogatories that were read to the jury, the City admitted that the sidewalk had been removed prior to May 9, 1972, for the purpose of installing a new water main in connection with a beautification project.

The land on the east side of Larrabee between Dickens and Webster was owned by WGM Associates, which was also originally joined as a defendant. At the time of the occurrence, the sidewalk on that side of the street too had been removed, and construction was also occurring on that side of the street.

Plaintiff testified as to the occurrence. Plaintiff lived one block south and one block west of the relevant section of Larrabee. He testified that during the two year period that he had lived there prior to May 9, 1972, there were no sidewalks on either side of Larrabee between Dickens and Webster. During this period plaintiff walked up and down Larrabee once or twice a day. He normally walked in the street, he testified, because it was too difficult to walk on the ground adjacent to the street or to go around.

Plaintiff testified that on the night of May 8, 1972, at about 11:00 P.M., he walked to a restaurant located on the northwest corner of Webster, Lincoln, and Larrabee. After having dinner and two drinks with a friend, plaintiff and his friend left the restaurant. They proceeded to walk south on the west side of Larrabee toward plaintiff's home. Plaintiff stated that there were no street lights on the portion of the street between Dickens and Webster; however, a City witness testified that there were street lights and that no outages had been reported. Plaintiff walked along the west side of the street about four feet from the curb, while his friend walked between plaintiff and the curb. Plaintiff testified that he observed the condition of the dirt area west of the west curb on Larrabee, and that it was very muddy with large puddles.

When plaintiff was midway down the street, an automobile going north on Larrabee swerved across the center line and struck plaintiff, injuring him. The driver of the car, Claudia Lofton was arrested by the Chicago Police. A certified copy of her plea of guilty and finding of guilty to driving under the influence of alcohol and without a driver's license was read to the jury. The parties also stipulated to the reading of her sworn statement to the jury. In her statement, she admitted that between 8:00 P.M. on May 8, and 1:00 A.M. on May 9, 1972, she drank about ten bottles of beer, two shots of whiskey, and several other drinks of whiskey mixed with water in a tavern on Larrabee called the Maurice Lounge, which was owned by defendant Maurice Phipps. She stated that she was drunk and things had become hazy by the time she left the tavern and walked to her car. She did not recall seeing the man she hit, but rather only heard a bump. She also stated that it was drizzling at the time of the accident. She concluded her statement by saying that she did not think the accident would have happened if she had not been drinking and become drunk. After the accident, both she and plaintiff were taken to nearby Grant Hospital, located on the northeast corner of Webster, Lincoln, and Larrabee.

Defendant Goldstein was called to testify by plaintiff. He stated that he was the supervising architect of a City construction job that had been taking place on Larrabee between Dickens and Webster since 1971. He testified that he thought there were sidewalks at the time of the incident and that they were not removed until later that year or the next. However, in his employment he was concerned with the construction of buildings themselves and not such "external" aspects as streets and sidewalks. He testified that there could have been equipment trailers where the sidewalks were or had been. He also stated that the location was muddy and puddled and that he sometimes saw pedestrians walking out in the street. He further testified that no one lived on either side of Larrabee between Dickens and Webster at the time in question.

Plaintiff also called as condition witnesses James Toon and Elizabeth Janicek, both of whom lived near plaintiff and frequently had occasion to walk down and observe the pertinent portion of Larrabee Street. Each testified that the sidewalk had been removed; that equipment, building material, debris, and mud made it impossible to walk where the sidewalk had been; and that they and other pedestrians therefore usually walked in the street. Each also testified that construction trailers, including some owned by Shamrock and Maloney, were parked on the dirt area about eight or ten feet from the west curb of Larrabee. Neither could testify as to the condition of the area specifically on the night plaintiff was injured. Other testimony will be presented as pertinent to our discussion of the issues raised on appeal.

The first issue concerns the relief prayed for by the City and the Dram Shop defendants in their notices of appeal. Plaintiff contends that because defendants request only reversal, they have waived the right to seek remandment of the cause for a new trial. Plaintiff has moved that the portions of defendants' briefs pertaining to...