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FOURTH DIVISION
Filed May 30, 2002

Plaintiff, Mildred Rios, brought suit against defendant, the City of Chicago (The City),for injuries she sustained when she slipped and fell on ice which accumulated on an alley returnlocated in Chicago. The jury returned a verdict in favor of defendant. On appeal, plaintiffcontends that she was entitled to a judgment notwithstanding the verdict. Alternatively, sheargues that the trial court erred in allowing the jury to hear inadmissable evidence for which nolimiting instruction was given, and erred in refusing plaintiff's jury instructions regardingunnatural accumulation and disfigurement. For the following reasons, we reverse the judgmentof the circuit court and remand for a new trial.

Plaintiff testified that on March 23, 1992, she was on her way to work, walking north onthe sidewalk along Halsted Street toward the intersection of Halsted, Fullerton, and LincolnAvenue in Chicago. The sidewalk was clear and there was salt on the ground. At one point, thesidewalk stopped at the entrance to an alley and resumed on the other side of the entrance. Crossing the alley in place of the sidewalk was an "alley return" - a concrete surface spanning theentrance to the alley that was sloped toward the intersecting street. When plaintiff came upon thealley, she looked to her right to check for cars. As she was looking for cars, she took one or twosteps into the alley and slipped and fell. She heard a loud crack in her right arm. After she fellshe looked on the ground to see what caused her to fall. She stated that she saw broken cementwith ice on top of it "right where she fell." Based upon photographs introduced at trial, shedescribed the area in which she fell as being towards the middle of the alley. The photographsdepict her pointing to the area with the broken concrete. She further testified that Donna Seltinhad been walking behind her, helped her to her feet, and took her to the hospital. She was treatedfor a dislocated and fractured elbow, which ultimately required surgery. On cross-examination,she testified that before she fell, she never noticed anything unusual about the sidewalk or alleyreturn where she fell.

Herbert Miller testified as plaintiff's structural engineering expert. He testified thatnaturally occuring weather conditions caused the concrete to "spall" or break up because theconcrete naturally absorbs water. When the water freezes, it expands and the concrete surfacegets pushed off by the expansion of the ice, creating a pockmarked or broken area. The spalledcondition took several years to develop. He also noticed signs that somebody at some time hadcut an area of the concrete and patched it. When asked whether the spalled condition caused anunnatural accumulation of ice to develop, Miller stated that the water came from a natural source,either from rain or melted snow, and that the slope of the alley return would normally allow for aproper run-off of that water. However, the spalling acted as a reservoir for the water to collectand freeze on the slope and created a dangerous condition. Miller reviewed the photographs, theweather report, and the depositions of plaintiff and Kenneth Rigan, the general superintendent ofthe bureau of streets for the City of Chicago. Miller further testified that prior to rendering hisopinions he did not believe that he reviewed the deposition testimony of Donna Seltin. He wasnot aware that Seltin had testified that on the date of the accident she was walking behindplaintiff and that a sheet of ice covered the street and sidewalk. The highest temperature on theday of the accident was 31 degrees, after a low of 17 degrees the previous night. Ten inches ofsnow had fallen during the two previous days.

Kenneth Rigan testified that as part of his duties, he was responsible for the maintenanceof the sidewalks and alley returns in the City. He agreed that one purpose of an alley return is toallow water to flow to the gutters into the catch basins or sewers, and that the alley is angled sothat water does not collect on the return. He also agreed that if the alley return becomes brokenor pockmarked, water could pool in those areas. He also testified that the concrete surfaceplaintiff points to in the photographs was likely laid to cover a trench that had been dug andrefilled by a utility company. It appeared to Rigan that workers employed by the company mostlikely dug the trench, refilled it, and laid the concrete surface. He admitted, however, that theCity had control over the alley return where plaintiff fell.

Steven Zebich testified as defendant's structural engineering expert. He stated that he wasalso trained in meteorology. In formulating his opinions, he reviewed the complaint, thedepositions of plaintiff, Rigan, Seltin, and Miller, a series of photographs, weather data, and alsoreviewed an inspection report of the site. He testified that based upon the information providedby Rigan, and the site inspection, the condition of the concrete where plaintiff alleged she fellwas probably related to the trench work done by the utility company. Additionally, he stated thatthe deterioration in the concrete was a result of normal long-term freeze-thaw action, which cancause parts of the surface to crack and spall over time. In his opinion, the ice that developed onthe concrete was due to a natural accumulation. His opinion was based upon various factorsidentified by his company: (1) whether there is a source for creating an unnatural accumulation ofice; (2) whether there is a potential for discharge of water from that source to create an unnaturalaccumulation; and (3) whether the topography around the area supports drainage from the sourceto the point of alleged accumulation. He explained that a source of an unnatural accumulation ofice is "a man-made object, a structure, some kind of thing that's built * * * that would channelquantities of water onto a spot in excess of common ground flow." He further explained thatsimply because water puddles on a man-made surface does not mean that it is there unnaturally;it is a normal, expected collection of water along a common ground surface.

Zebich also testified that based upon the testimony of Seltin and the weather data, it washis opinion that the location where plaintiff states she fell was covered with ground surface ice or"black ice." He stated that Seltin's testimony aided him in formulating his opinion because shetestified in her deposition that it was actively sleeting, that there was ice everywhere, that she waswalking on the snow and that it was crunching. However, he also relied upon the weatherinformation available from the Chicago Botanical Garden, the University of Chicago, and O'HareAirport. That information disclosed that on the day of the accident, there was no reportedprecipitation. However, two days prior, there was a total accumulation reported of 10 inches ofsnow. In addition to that, fog, rain, blowing snow, or drizzle was occurring, and the relativehumidities at all the locations were high, which meant that the air was very moist. Temperaturesfluctuated above and below freezing. This combination created a classic situation for creatingfog, and ground surface icing conditions, including on sloped surfaces. Accordingly, based uponthe porous nature of concrete and the weather conditions, it was his opinion that water couldhave collected throughout the entire alley return. Zebich did not personally inspect the areawhere plaintiff fell. He agreed that, generally, the alley return was designed for safety purposesto prevent large quantities of water from remaining there and freezing.

Evidence was also introduced that the City had a hotline for handling city complaints. The City had not received any complaints of any defects in the alley way of 2300 North HalstedStreet during the period beginning one year before the accident and ending one month after theaccident. At the close of the evidence and after closing arguments, the jury was instructed on thelaw and was asked to answer four special interrogatories as follows:

(1) "Were the alley return and sidewalk where Plaintiff Mildred Riosalleges she fell in reasonably safe condition on March 23, 1992?"

(2) "Did the City of Chicago have actual or constructive notice of [a]condition that was not reasonably safe at the location where the Plaintiff MildredRios alleges she fell, on March 23, 1992, in sufficient time to have remedied thecondition prior to the date of Plaintiff Mildred Rios' fall?"

(3) "Was the natural accumulation of ice or snow the sole proximate causeof Plaintiff Mildred Rios' injuries?"

(4) "Was the negligence of Mildred Rios greater than 50% of the totalproximate cause of her injuries?"

The jury returned a general verdict for defendant, answered "yes" to the first and third specialinterrogatories, and "no" to the second and fourth special interrogatories. Plaintiff's posttrialmotion for a judgment notwithstanding the verdict or for a new trial was denied.

Plaintiff initially contends that the trial court erred in denying her motion for a judgmentnotwithstanding the verdict. Specifically, she argues that had the court properly set aside theunreliable and inadmissible hearsay testimony of Seltin, the incontrovertible evidence establishedthat plaintiff was entitled to a judgment in her favor. A judgment notwithstanding the verdictshould not be granted unless the evidence, when viewed in the light most favorable to theopponent, so overwhelmingly favors the movant that no contrary verdict could possibly stand. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999). In making this assessment, a reviewing court must not substitute its judgment for the jury's, normay a reviewing court reweigh the evidence or determine the credibility of the witnesses. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257. The denial of a motion for judgmentnotwithstanding the verdict is reviewed de novo. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257.

It is well settled that a municipality is not liable for the condition of its property caused bythe natural accumulation of ice and snow, provided the area is properly constructed and no otherdefect is shown. 745 ILCS 10/3-105(a)(West 1998); Davis v. City of Chicago, 8 Ill. App. 3d 94,96-97, 289 N.E.2d 250, 252 (1972). If, however, a slippery condition is combined with a defectin the property that is not reasonably safe, liability may be imposed if the defect is found to be aproximate cause of the injury, and the municipality had proper notice of the condition. See 745ILCS 10/3-102(a), 10/3-105(a)(West 1998); McCann v. Bethesda Hospital, 80 Ill. App. 3d 544,549, 400 N.E.2d 16, 19 (1979); Davis, 8 Ill. App. 3d at 97, 289 N.E.2d at 252. "[T]he defect as aproximate cause is essential, and recovery will be denied when an accident is caused solely by anaturally icy surface." Davis, 8 Ill. App. 3d at 97, 289 N.E.2d at 252; 745 ILCS 10/3-105(a)(West 1998). Thus, in the present case, plaintiff had the burden to prove that the spalledconcrete on the slope of the alley return caused an unnatural accumulation of ice which was notreasonably safe, that the City had proper notice of the condition, and that as a proximate cause ofthe dangerous condition, plaintiff was injured.

Here, at trial plaintiff presented some conflicting evidence as to the location where shefell. While she introduced photographs of herself and pointed to the spalled concrete area in themiddle of the alley return as the place where she fell, her testimony was that she fell when shetook one or two steps off the curb into the alley. Based upon the photographs, the spalledconcrete area was several feet from the point where the sidewalk met the alley. Thus, plaintiff'scredibility was in question, and the jury could have found that the complained-of condition of thealley return was not the proximate cause of her injury.

Moreover, defendant's expert opined that based upon the porous nature of concrete andgiven the weather data available, plaintiff fell due to a natural accumulation of ground surfaceicing. Thus, without the complained-of deposition testimony of Seltin, there was other evidenceintroduced from which the jury could have found that the accident was solely caused by anaturally icy surface. Accordingly, the trial court properly denied plaintiff's motion for ajudgment notwithstanding the verdict.

Plaintiff next contends that the trial court erred in making various evidentiary rulingsregarding the inadmissible deposition testimony of Donna Seltin. Initially, defendant maintainsthat plaintiff has waived these errors for failing to contemporaneously object to them at trial andfor failing to make proper objections. Upon review of the record, we find that plaintiff madesufficiently timely and appropriate objections, repeating her assertion that the deposition couldnot be used as substantive evidence at trial and requesting a limiting instruction on that basis. Accordingly, we choose to address the merits of her argument.

Seltin testified in her discovery deposition that she was walking about a block behindplaintiff on the morning of her fall. She stated that there was ice all over the ground and it wasactively sleeting. Prior to trial, Seltin died. Plaintiff filed a motion in limine to bar defendantfrom introducing her deposition testimony at trial for any purpose. While the depositiontestimony was inadmissable as substantive evidence, defendant argued that it was allowable forthe purpose of explaining the basis of its expert's opinion and to impeach plaintiff's expert. Thetrial court denied plaintiff's motion in limine, and allowed defendant to use the testimonythroughout the trial as requested.

Initially, we address plaintiff's contention that the trial court erred in allowing defendantto use Seltin's deposition testimony during its direct examination of Zebich. Defendant arguedbefore the trial court that these facts were admissible under Wilson v. Clark, 84 Ill. 2d 186, 417N.E.2d 1322 (1981), as forming the basis of its expert's opinion. In Wilson v. Clark, oursupreme court specifically adopted Federal Rule of Evidence 703 (Fed. R. Evid. 703), allowingexperts to give opinion testimony based upon information which has not been admitted intoevidence, as long as the facts relied upon are "'of a type reasonably relied upon by experts in theparticular field in forming opinions or inferences upon the subject.' " Wilson, 84 Ill. 2d at193-96, 417 N.E.2d at 1326-27, quoting Fed. R. Evid. 703. The court explained that if the trialcourt determined that the underlying facts were of the sort reasonably relied upon by experts informing opinions, the expert could reveal the facts, not as substantive evidence, but for thelimited purpose of explaining his opinion. City of Chicago v. Anthony, 136 Ill. 2d 169, 185-86,554 N.E.2d 1381, 1389 (1990).

Thus, the proponent of the evidence must convince the trial court that the information isof the type customarily relied upon by experts in the field, and that such information issufficiently trustworthy to make such reliance reasonable. Anthony, 136 Ill. 2d at 186, 554N.E.2d at 1389; Bloome v. Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., 279 Ill.App. 3d 469, 476, 664 N.E.2d 1125, 1130 (1996). Here, during the direct examination ofZebich, the following exchange took place over plaintiff's objection:

"Q. * * * Could you tell us how Ms. Sultan's testimony aided you informulating your opinions?

A. Well, Ms. Sultan was an eyewitness. She was walking behind Ms. Riosat the time of the accident, though I think she said she didn't fall, but she gave avery detailed description of the environment at that time. She indicated it wasactively sleeting, that there was ice on sidewalks and streets. I think she said iceeverywhere, and that there was snow. Snow was not that terrible south of thealley return. She talked about walking on the snow and it was crunching, youknow how the top surface freezes and below it [is] soft. She [sic] talks aboutwalking on the snow and it was crunching and it had been removed or clearedfurther down but there generally was ice along the ground surfaces."

Applying the above principles to the facts in the present case, we find that it was error forthe trial court to allow Zebich to rely on and disclose to the jury Seltin's statements about the icyand sleeting weather conditions at the time of the occurrence. Defendant failed to lay anyfoundation as to whether such hearsay is customarily relied upon in rendering opinions in theexpert's field and, more importantly, whether such reliance was reasonable. Indeed, plaintiff'sexpert found eyewitness statements about the weather conditions were not sufficiently reliable informulating his opinions in this case.

It was imperative for the trial court to require a proper foundation be established for thistype of evidence as emphasized in the advisory committee's note to Rule 703. Therein, thecommittee indicates that reliance is reasonable only if the facts, data, or opinions possess anindicia of trustworthiness in excess of that possessed by the ordinary hearsay statement. Fed. R.Evid. 703, 28 U.S.C., Notes of Advisory Committee (2000) (opinion of an "accidentologist" as tothe point of impact in an automobile collision based on statements of bystanders precluded underreasonable reliance provision.) See M. Graham, Cleary & Graham's Handbook of IllinoisEvidence