Martin v. City of Chi.

229 N.E.3d 986

2023 IL App (1st) 221116

Sarah MARTIN, Plaintiff-Appellant,

v.The CITY OF CHICAGO, Defendant-Appellee.

No. 1-22-1116

Appellate Court of Illinois, First District, Third Division.

Filed November 15, 2023

Appeal from the Circuit Court of Cook County. No. 17 L 9485, Honorable Joan E. Powell, Judge, presiding.

David Nemeroff, of Nemeroff Law Offices, Ltd., of Chicago, for appellant.

Mary B. Richardson-Lowry, Acting Corporation Counsel, of Chicago (Myriam Zreczny Kasper, Suzanne M. Loose, Stephen G. Collins, and Daniel E. Alperstein, Assistant Corporation Counsel, of counsel), for appellee.

OPINION

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Sarah Martin brought this negligence action against defendant City of Chicago (City) to recover for injuries she sustained when she stepped in a hole in the sidewalk and fell to the ground. The trial court refused plaintiff’s proffered ordinary negligence liability issue instruction and instead tendered to the jury the City’s premises liability issue/burden of proof instruction. The jury returned a general verdict in favor of the City.

¶ 2 On appeal, plaintiff argues the jury should have received her ordinary negligence liability issue instruction because the evidence showed that either the City’s activity on the premises caused the injury or the dangerous condition arose as part of the City’s business. She also argues that she suffered prejudice from the erroneous jury instruction.

¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.¹

¶ 4 I. BACKGROUND

¶ 5 Plaintiff’s November 2018 first amended complaint was the operative complaint through the start of trial. This amended complaint, which entitled plaintiff’s negligence claim as one for "premises liability," alleged that the city owned the sidewalk and was responsible for its maintenance; an open hole existed on that sidewalk, which posed a hazard to pedestrians; the City knew about the hole; the City was negligent in allowing the hole to remain on the sidewalk without repair; plaintiff was exercising due care for her own safety; and plaintiff was injured by stepping into the hole.

¶ 6 The City’s answer raised as affirmative defenses the doctrine of comparative negligence and statutory immunity from liability, based on, inter alia, not having actual or constructive notice of the alleged condition that was open and obvious.

¶ 7 The City moved for summary judgment, arguing that it owed no duty to plaintiff because the sidewalk hole was open and obvious as a matter of law. Plaintiff responded that a factual dispute existed as to the physical nature of the hole; the distraction exception applied; and the City still owed plaintiff a duty regardless. The. trial court denied the City’s motion, ruling that there was a factual dispute about the visibility of the hole, i.e., whether it was open and obvious.

¶ 8 After the first day of trial, plaintiff filed a second amended complaint that changed the title of her claim from "premises liability" to "negligence" and removed a dismissed count for willful and wanton conduct but made no other changes to the pleading.

¶ 9 The evidence presented at trial showed that, in April 2017, at about 4 p.m., plaintiff was walking with her husband and daughter when plaintiff stepped into a hole in the sidewalk, fell, and injured her ankles. The sidewalk’s condition was depicted in the photographs presented at trial. At the time of the accident, nothing covered the hole, the area was not slippery or wet, the weather was clear, and no other pedestrians were nearby.

¶ 10 Prior to plaintiff’s fall, her husband was pushing their daughter in a stroller. He testified that he did not see the hole and did not step in it. Just before plaintiff stepped in the hole, she was walking either single file behind her husband or behind him and slightly to his right. She testified that she did not see the hole before walking into it because her husband and the stroller blocked her view and she was looking to her right, distracted by a tarp flapping against a fence.

¶ 11 Michael Drake, superintendent of in-house construction for the Chicago Department of Transportation, testified that his department was the agency responsible for repairing holes in the City’s sidewalks. The City has 8000 miles of city sidewalk to maintain, an average of 4000 to 6000 active service requests at any given time, and only five repair crews available to conduct such work, necessitating prioritization of the moat urgent requests, Drake testified about the City’s 311 records, including service requests and summary reports related specifically to the hole that plaintiff walked into. Specifically, the City had been alerted to the defective condition of the sidewalk by the City’s 311 system and knew of the condition of the sidewalk for about one year and eight months before plaintiff’s accident. The City had a plan to repair the sidewalk by replacing the sidewalk slab but the City did not perform a temporary or permanent repair, Drake testified that the hole in the sidewalk could be dangerous for pedestrians. A temporary repair would have involved a crew filling the hole with gravel or sandbags up to the level of the sidewalk and would have cost the City about $250. Replacing the sidewalk slab would have cost the City about $700 to $800.

¶ 12 At the jury instruction conference, plaintiff proffered Illinois Pattern Jury Instructions, Civil, No. 20.01 (rev. Aug. 2023) (hereinafter IPI Civil No. 20.01)—the ordinary negligence instruction, which does not address whether a condition is open and obvious. Plaintiff argued that her complaint was a negligence case, rather than a premises liability case, because the theory of her case was that either the City’s activity on the premises caused the injury or the dangerous condition arose as part of the City’s business.

¶ 13 The City proffered Illinois Pattern Jury Instructions, Civil, No. 120.08 (approved Dec. 8, 2011) (hereinafter IPI Civil No. 120.08)—the premises liability issue/burden of proof instruction. The City argued that the case had been alleged as, and litigated under, a premises liability theory, plaintiff’s allegations related to the condition of the sidewalk and not to any activity or business conducted thereon, and the open and obvious issue had been much of the focus of the trial. The Notes on Use for this instruction explains that it is "for premises liability cases, including those in which the plaintiff claims that he/she was distracted and failed to observe an open and obvious defect on the property." IPI Civil No. 120.08, Notes on Use. Among other requirements, this instruction requires the plaintiff to prove that "the defendant could reasonably expect that people on the property would not discover or realize the danger or would fail to protect themselves against such danger." IPI Civil No. 120.08.

¶ 14 After extensive argument, the trial court ruled that IPI Civil No. 120.08 was the appropriate instruction given the nature of plaintiff’s case and so instructed the jury. The court also instructed the jury on contributory negligence, which the City had raised as a defense.

¶ 15 While the jury was deliberating, the jury asked the court to clarify the fourth item of plaintiff’s burden of proof referred to in the IPI Civil No. 120.08 instruction, i.e., that "the defendant could reasonably expect that people on the sidewalk would not discover or realize the danger or would fail to protect themselves against such danger." The court responded that the jury should continue deliberating.

¶ 16 The jury returned a general verdict for the City. The court entered judgment on the verdict and denied plaintiff’s posttrial motion. Plaintiff timely appealed.

¶ 17 II. ANALYSIS

[1–5] ¶ 18 Litigants are entitled to have the jury instructed on the issues presented, the applicable legal principles, and the facts that must be proved to support a verdict. Bailey v. Mercy Hospital & Medical Center, 2021 IL 126748, ¶ 41, 452 Ill. Dec. 642, 186 N.E.3d 366. The trial court has discretion to determine which instructions to give the jury, and that determination will not be disturbed absent an abuse of that discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273, 266 Ill.Dec. 892, 775 N.E.2d 964 (2002). Also, "[t]he question of what issues have been raised by the evidence is within the discretion of the trial court." Leonardi v. Loyola University, 168 Ill. 2d 83, 100, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995). Moreover, "[w]henever Illinois Pattern Jury Instructions (IPI), Civil, contains an instruction applicable in a civil case *** the IPI instruction shall be used, unless the court determines that it does not accurately state the law." Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013). The standard for deciding whether a trial court abused its discretion is whether, taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles. Schultz, 201 Ill. 2d at 273-74, 266 Ill.Dec. 892, 775 N.E.2d 964. An instruction does not justify reversal unless it clearly misled the jury and resulted in prejudice to the appellant. Dynek v. City of Chicago, 2020 IL App (1st) 190209, ¶ 25, 446 Ill.Dec. 135, 169 N.E.3d 798.

¶ 19 Plaintiff argues that this case should have been submitted to the jury under a theory of ordinary negligence, instead of premises liability, because the allegations and evidence showed that either the City’s activity on the premises caused the injury or the dangerous condition arose as part of the City’s business. Specif- ically, she contends the evidence showed that the City negligently omitted to timely repair its sidewalk for over one year and eight months after the City learned of the sidewalk danger via its 311 system, visited the site to survey the problem, developed a plan to repair it, and placed orders to repair its sidewalk. Plaintiff argues that the...