Find Legal Information

SIXTH DIVISION
June 22, 2001

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 circuitcourt erred in (1) denying its motion for judgment notwithstanding the verdict based on section 3-106of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745ILCS 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 juryfailed 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 tocertain allegedly irrelevant comments made by plaintiff's husband. We affirm on the appeal and thecross-appeal.

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

Plaintiff filed a negligence and willful and wanton action against defendant. The jury returneda verdict in favor of defendant on the willful and wanton claim and a $406,600 verdict in favor of plaintiffon her negligence claims. The jury reduced the verdict to $203,300 to reflect plaintiff's 50% contributorynegligence. 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 judgmentnotwithstanding the verdict on plaintiff's negligence claims. A judgment notwithstanding the verdictjudgment n.o.v should be entered only when all of the evidence, viewed in the light most favorable tothe non-moving party, so overwhelmingly favors the movant that no contrary verdict based on thatevidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).

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

"Neither a local public entity nor a public employee is liable for an injury wherethe liability is based on the existence of a condition of any public propertyintended or permitted to be used for recreational purposes, including but notlimited to parks, playgrounds, open areas, buildings or other enclosedrecreational facilities, unless such local entity or public employee is guilty ofwillful 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 sidewalkupon which she fell is "public property intended or permitted to be used for recreational purposes." 745ILCS 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 construesection 3-106. Because the construction of a statute is a matter of law, review is de novo. City of Chicagov. Illinois Commerce Comm'n, 286 Ill. App. 3d 557, 559 (1997).

The primary rule of statutory construction is to ascertain and give effect to the intent of thelegislature. City of Chicago, 286 Ill. App. 3d at 559. The most reliable indication of legislative intentis the language of the statute itself. People v. Ellis, 296 Ill. App. 3d 862, 865 (1998). In interpreting astatutory provision, words should be given their plain and ordinary meaning. Ellis, 296 Ill. App. 3d at865. The dictionary can be used to ascertain the ordinary and popular meaning of words. Ellis, 296 Ill.App. 3d at 865.

A "condition" is part of the property's "mode or state of being" (see American HeritageDictionary, 290 (3d coll. ed. 1993)), i.e., part of the property itself. Examples of such conditions ofproperty include restroom facilities within a park (Annen v. Village of McNabb, 192 Ill. App. 3d 711(1990)), a steel barricade barring unauthorized vehicles from a recreational area (Kirnbauer v. CookCounty Forest Preserve District, 215 Ill. App. 3d 1013 (1991)), wires used to straighten and support trees(Straub v. City of Mt. Olive, 240 Ill. App. 3d 967 (1993)), and a 100-pound concrete parking abutment"car stop" in a parking lot (Sylvester v. Chicago Park District, 179 Ill. 2d 500 (1997)).

Here, the hose was moved from place to place within the park to water plants, then returned tostorage 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 propertyin such a way as to become a part of the property itself. Since the hose was not part of the property, itwas 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 thefollowing issues instruction as to negligence:

"The plaintiff claims that she was injured and sustained damage and that thedefendant 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 placedacross the sidewalk; or

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

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

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 TortImmunity Act, which provide immunity for discretionary decisions and for supervisory failures. 745ILCS 10/2-109, 2-201, 3-108(a) (West 1998). Defendant argues that the amended affirmative defensesare necessary to counter certain jury instructions which contain a theory of liability not pleaded inplaintiff's complaint.

A party who seeks on appeal to amend his pleadings must show that "no prejudice will result tothe adverse party if the amendment sought is permitted." 155 Ill. 2d R. 362(b). Defendant first raisedthe amended affirmative defenses in a posttrial motion; defendant never argued during trial or duringthe jury instruction conference that those defenses applied to bar plaintiff's cause of action. To allowdefendant to amend its pleadings and file the amended affirmative defenses for the first time on appealwould unduly prejudice plaintiff. Defendant's motion is denied.

Defendant argues that Schiff v. Schiff, 25 Ill. App. 2d 157 (1960), compels a different result. Theappellate court in Schiff upheld an agreement by all parties to amend the pleadings. Schiff is inappositeto the present case, as plaintiff never agreed to any amendment to the pleadings.

II. Plaintiff's cross-appeal

On cross-appeal, plaintiff argues for a new trial on damages because the jury failed to award herany of her $105,977.49 in medical expenses. We disagree. The circuit court cured the error by grantingadditur in the amount of $52,988.75, which represented the $105,977.49 reduced by plaintiff's 50%contributory negligence.

Next, plaintiff argues that the jury's finding of 50% contributory negligence is against themanifest weight of the evidence. Plaintiff testified that at the time of her injury, she was walking southon a dry sidewalk running next to Lake Shore Drive on a sunny Saturday morning. Her vision wasnormal and her view of the sidewalk was unencumbered as she tripped on the hose (described as eithera 2