Smart v. The City of Chicago
43 N.E.3d 532
Ill. App. Ct.2013Background
- Plaintiff Todd Smart, an experienced bicyclist, was injured on July 1, 2007 when his front wheel lodged in a shallow trench/gash adjacent to a raised Commonwealth Edison utility vault on a City resurfacing site, causing severe shoulder injuries.
- The City had performed large grinding on June 20 and fine/trim grinding on June 25; resurfacing (asphalting) occurred July 10. Evidence showed fine grinding left abrupt transitions, grooves, and a trench where a small grinder stood.
- Smart sued the City for negligence (one-count complaint). The City asserted affirmative defenses under the Illinois Tort Immunity Act and comparative negligence.
- At trial plaintiff's expert testified the grinding pattern and lack of transition created an unsafe condition; the City’s foreman disputed the condition. Jury returned a general verdict for Smart and awarded ~$1.9M.
- The City moved for a new trial arguing (1) the trial court erred by refusing its proposed special interrogatory on contributory negligence, and (2) the court erred in refusing to give the IPI premises-liability issues instruction (IPI No. 120.08) and instead gave general negligence instructions. The trial court denied the motion and the City appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in refusing City's special interrogatory asking whether Smart's contributory negligence was >50% | Smart argued the interrogatory was compound, prejudicial, and the court properly refused it | City argued the single interrogatory tested the general verdict and would have been inconsistent with a verdict for plaintiff | Court held interrogatory was impermissibly compound and prejudicial (introductory language presupposed negligence); refusal not error |
| Whether trial court erred by refusing to give IPI No. 120.08 (premises-liability issues & burden) | Smart argued his claim was negligence based on the City's resurfacing activity, so general negligence instructions were proper | City argued plaintiff's claim concerned the condition of property and thus required premises-liability issues instruction; City was not performing activity on the accident day and is not a business | Court held plaintiff sued in negligence and was entitled to that theory; City's resurfacing activities created the hazard so ordinary negligence instructions were appropriate; refusal to give IPI No. 120.08 was not error |
| Whether giving general negligence instructions relieved plaintiff of proving notice (an element of premises liability) | Smart: Where defendant's activity created the hazard, plaintiff need not prove notice; ordinary negligence instructions apply | City: Premises-liability instruction would require notice and address open-and-obvious issues | Court: When defendant's acts created the dangerous condition, notice requirement departs; using negligence instructions was correct and not prejudicial |
| Whether any asserted immunity or Moore v. Chicago Park Dist. required treating the matter as a property-condition (premises) claim | Smart: Moore (snow/immunity) inapposite; City's ongoing resurfacing are active negligent acts, not a mere condition for immunity purposes | City: Moore supports treating condition as property-related, not activity | Court: Moore concerns immunity under a different statutory section and is distinguishable; City’s resurfacing activities were active and created the hazard; Moore does not require a different result |
Key Cases Cited
- Simmons v. Garces, 198 Ill. 2d 541 (Illinois 2002) (standard for special interrogatories and when they must be submitted)
- Moore v. Chicago Park District, 2012 IL 112788 (Ill. 2012) (interpreting "condition" vs. "activity" under Tort Immunity Act; distinguished)
- Washington v. City of Chicago, 188 Ill. 2d 235 (Ill. 1999) (statement of public-entity duty to maintain property reasonably safe)
- Reed v. Wal-Mart Stores, 298 Ill. App. 3d 712 (Ill. App. 1998) (permitting negligence theory where defendant’s earlier acts created dangerous condition)
- Lundquist v. Nickels, 238 Ill. App. 3d 410 (Ill. App. 1992) (special interrogatory improper where it presumes plaintiff’s comparative negligence)
- Johnson v. Owens-Corning Fiberglass Corp., 313 Ill. App. 3d 230 (Ill. App. 2000) (discussion of special-interrogatory form; distinguishing compound questioning)
- Santos v. Chicago Transit Authority, 198 Ill. App. 3d 866 (Ill. App. 1990) (examples and limits for proper special interrogatories)