delivered the opinion of the court:
Plаintiff, Margaret Ann Glass, appeals from a jury verdict in favor of defendant, the City of Chicago (the City), on her claim for personal injury damages sustained from a fall on a City sidewalk. Plaintiff asks this court to enter judgment notwithstanding the verdict and to order a new trial limited to the issue of damages. Alternatively, plaintiff asks this court to remand the case for a new trial.
At trial, plaintiff testified that a hole in the sidewаlk approximately | eight inches wide by three feet long and approximately 21/2 inches deep, located near the intersection of Wrightwood and Clark, caused her to trip and fall, resulting in injuries which aggravated a preexisting medical condition. Further, plaintiff testified that after receiving treatment for her injuries at a hospital emergency room, she returned to the scene and photographed the hole. Plaintiffs photographs were admitted into evidence.
At trial, occurrence witness Ted Pawasarat testified that he was standing on Wrightwood facing Clark when he heard a commotion, that he turned toward the commotion and saw plaintiff sliding on the street. Occurrence witness Ted Dzendrowki similarly testified that he was driving near the corner of Wrightwood and Clark when he sаw plaintiff fall at the hole in the sidewalk. Further, George Marinakis testified that he owned a building at the corner of Wrightwood and Clark and that approximately one year before plaintiffs accident he went to a City office and personally asked the City to repair the sidewalk. Marinakis added that following his initial request, he made four or five follow-up requests that the City repair the sidewаlk. Plaintiffs physicians testified to the extent of her injuries and that the trauma of the injuries aggravated a preexisting medical condition.
At the conclusion of her case in chief, plaintiff requested a directed verdict arguing over defendant’s objection that the court could determine notice as a matter of law. The circuit court denied plaintiffs motion and the trial proceеded.
Jerome Eck, an accident reconstruction expert, testified on behalf of defendant that, based upon plaintiffs deposition, Pawasarat’s deposition, and copies of the photographs taken by plaintiff, plaintiff could not have tripped and landed in the street without hitting Pawasarat in the course of her fall. In particular Eck based his opinion upon the deрosition testimony of plaintiff and Pawasarat regarding their positions at the time of the fall and after the fall. According to Pawasarat’s deposition testimony, plaintiff fell to his right, but according to Pawasarat’s trial testimony, he was unsure whether plaintiff fell to his left or his right. Further, at trial, Pawasarat was unable to recall exactly where he was standing at the time of the accident and testified hе may have been standing further south than he indicated in his deposition. At the conclusion of Pawasarat’s trial testimony, plaintiff moved to strike Eck’s expert testimony as lacking sufficient basis in fact. The circuit court refused to remove the testimony from the record, but allowed plaintiff to argue the matter to the jury.
Dr. David Shenker also testified on behalf of defendant that plaintiffs fall did not aggravate her preexisting medical condition, but that subsequent flare-ups of symptoms fell within an established pattern. However, Dr. Shenker admitted on cross-examination that he had only treated 10 to 20 patients with plaintiffs condition in the course of his career.
Following the close of evidence, plaintiff again moved for a directed verdict on the issue of notice. The circuit court denied thе motion.
At the jury instructions conference, plaintiff objected to defendant’s proffered Illinois Pattern Jury Instructions, Civil, No. B 120.09 (3d ed. 1995) (hereinafter IPI Civil 3d), because it imposed a duty only where the City should have anticipated that a person on the premises would not discover or realize the danger or would otherwise fail to protect himself against it, a duty standard different from that in the Local Govеrnmental and Governmental Employees Tort Immunity Act (Governmental Tort Immunity Act) (745 ILCS 10/3—101 et seq. (West 1998)). Plaintiff tendered an amended version of IPI Civil 3d No. 20.01 and argued that this instruction, together with her other proffered jury instructions (specifically IPI Civil 3d B21.02), properly and adequately advised the jury of her burden of proof. The circuit court ruled in favor of defendant and tendered IPI Civil 3d No. B120.09 to the jury.
At defendant’s request, the court alsо tendered two special interrogatories to the jury.
“SPECIAL INTERROGATORY NO. 1
On March 24, 1994 was the sidewalk that MARGARET ANN GLASS claims caused her to fall in reasonably safe condition.
_YES
_NO.”
“SPECIAL INTERROGATORY NO. 2
Did the City of Chicago have actual or constructive notice prior to March 24, 1994 of the condition on the sidewalk that MARGARET ANN GLASS claims caused her to fall?
_YES
_NO.”
During deliberations, the jury sent the court a note requesting a definition of “constructive noticе.” The court did not provide a definítian; instead, it instructed the jury to consider the case based on the evidence and the legal definitions before them. The jury returned a general verdict in favor of defendant and responded to the two special interrogatories finding that the sidewalk was not in reasonably safe condition, but that the City did not have actual or constructive notice оf the defect prior to plaintiffs accident.
On appeal, plaintiff argues she is entitled to a judgment n.o.v. because she proved the elements of notice, duty, breach, causation, and damages. Alternatively plaintiff argues she is entitled to a new trial because the circuit court (1) improperly submitted the issue of notice to the jury, (2) failed to define the term “constructive notice” for the jury, (3) improperly admitted the testimony of defendant’s reconstruction expert, and (4) improperly instructed the jury regarding defendant’s duty.
•1 A judgment n.o.v. is appropriate only in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co.,
Here the jury’s response to “Special Interrogatory No. 2,” that the City lacked actual or constructive notice of the condition of the sidewalk, is potentially dispositive of plaintiffs appeal. As the City correctly points out, if plaintiff fails to prove every element of her complaint, including notice, her case must fail. Accordingly, we address the notice issue first.
On appeal, plaintiff urges this court to disregard the jury’s response to “Speсial Interrogatory No. 2,” because the existence of notice was an issue of law and thus should never have been submitted to the jury. Plaintiff relies primarily upon Livings v. City of Chicago,
•2 Here, the hole in the sidewalk, which was approximately eight inches wide by three feet long by 21h inches deep, was somewhat smaller than that in Livings, which was two to three feet wide by three feet long by 2xh inches deep. However, based upon the uncontradicted testimony of plaintiff and of Marinakis, this hole, like the hole in Livings, had existed for more than a year. Moreover, the plaintiff in this case provided additional, uncontradicted testimony that Marinakis had actually reported the damaged sidewalk to the City and repeatedly requested that it be repaired.
Despite this uncontradicted testimony, the City argues that the existence of actual notice is an issue of fact, rather than an issue of law, because Marinakis’s testimony that he asked the City to fix the sidewalk is not testimony as to the existence and specific nature of the defect. Further, the City argues that without such testimony, plaintiff failed to prove the hole was more than a de minimis defect. The City’s argument is not well taken. Under the Governmental Tort Immunity Act, actual notice means notice of the condition only, not the unsafe nature of the condition (Vacala v. Village of La Grange Park,
The City similarly argues the existence of constructive notice is an issue of fact, rather than an issue of law, because plaintiff admitted she walked by the area on a daily basis yet did not notice the hole. The City reasons thаt if plaintiff failed to notice the hole, then the City could not have discovered the hole even through the exercise of reasonable care. Thus, the City contends it was entitled either to have the issue of constructive notice submitted to the jury or to have a directed verdict in its favor on the issue. The City cites Smolek v. K.W. Landscaping,
Because the undisputed and uncontradicted evidence established that the deteriorated portion of the sidewalk was approximately eight inches in width, three feet in length, and 21k inches deep and that the defective condition had existed for one or two years prior to the accident and because the undisputed and uncontradiсted evidence established that the City had been advised of the problem, the only reasonable conclusion to be drawn is that the City had notice, whether actual or constructive, of the defect, and the existence of notice should have been determined as a matter of law by the court under the Pedrick standard. See Livings,
Because the circuit court erred in submitting “Special Interrogatory No. 2” to the jury, the jury’s response is not dispositive of plaintiffs appeal and we address plaintiffs remaining issues. As previously noted, plaintiff contends she is entitled to judgment n.o.v. because she proved duty, notice, breach and causation. Because notice was an issue of law, wе consider whether the evidence on the remaining elements of duty, breach and causation, when viewed in the aspect most favorable to the City, so overwhelmingly favors plaintiff that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co.,
•3 First, the issue of duty. Whether the City owes any duty to thе plaintiff and the scope of that duty is a question of law. Ward v. K mart Corp.,
•4 Next, breach. Again, the jury’s response to “Special Interrogatory No. 1” that the sidewalk was not in reasonably safe condition establishes that the City had not maintained the sidewalk for the purpose for which it was intended or for the use of those exercising ordinary care.
Finally, causation. Plaintiff’s proof of causation is based upon her own testimony and that of two eyewitnesses. Unfortunately, neither eyewitness actually saw plaintiff trip; they only saw her falling. The City countered plaintiff’s proof with the testimony of an accident reconstruction expert, Eck. Eck testified that, based upon plaintiff’s deposition, Pawasarat’s deposition, and copies of the photographs taken by plaintiff, plaintiff could not have tripped and landed in the street without hitting Pawasarat in the course of her fall. In particular, Eck based his opinion upon the deposition testimony of plaintiff and Pawasarat regarding their positions at the time of the fall and after the fall. Given the conflicting testimony, causation is an issue of fact which would preclude entry of judgment n.o.v. However, because plaintiff also argues the circuit court improperly refused to strike Eck’s testimony, it is not necessarily a “given” that there is conflicting testimony.
According to Pawasarat’s deposition testimony, plaintiff fell to his right, but according to Pawasarat’s trial testimony, he was unsure whether plaintiff fell to his left or his right. Further, Pawasarat was unable to remember exactly where he was standing at the time of the accident and testified he may have been standing further south than he indicated in his deposition. Accordingly, plaintiff argues the circuit court erred in refusing to strike Eck’s testimony as lacking sufficient basis where there was competent eyewitness testimony which conflicted with his expert testimony. The City counters that plaintiff waived this issue by failing to contemporaneously object to Eck’s testimony, that even if the issue has not been waived Eck’s testimony was proper because it assisted the jury or was harmless error because of the jury’s answer to “Special Interrogatory No. 2.”
The City’s waiver argument is not well taken as plaintiff timely moved to strike Eck’s testimony once Pawasarat’s subsequent trial testimony revealed a conflict. Likewise the City’s harmless error argument is not well takеn in light of this court’s earlier ruling regarding “Special Interrogatory No. 2.” The question, then, is limited to whether Eck’s testimony was improper in light of contrary eyewitness testimony or proper because it assisted the jury.
Although there is some merit to plaintiff’s argument that the testimony of a reconstruction expert should not be allowed where there is adequate and contradictory eyewitness testimony (see Peterson v. Lou Bachrodt Chevrolet, Co.,
•5 Because it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses’ testimony (Maple v. Gustafson,
•6 Because Eck’s testimony together with the evidence proffered by plaintiffs eyewitnesses on the element of causation, when viewed in the light most favorable to the City, does not so overwhelmingly favor plaintiff that no verdict for the City could ever stand, plaintiff has failed to satisfy the Pedrick standard. Accordingly, plaintiffs argument that she is entitled to judgmеnt n.o.v. on her entire claim must fail.
•7 Finally, plaintiff argues the circuit court improperly instructed the jury regarding defendant’s duty and, in so doing, added an element to plaintiffs burden of proof. More specifically, the circuit court instructed the jury pursuant to IPI Civil 3d No. B120.09 that the plaintiff had the burden of proving “[t]hat the defendant should have anticipated that person on the premises would not discover or realize the danger, or would otherwise fail to protect themselves against it.” Plaintiff argues this instruction sets the duty threshold for the City at whether it should have known the plaintiff would fail to discover the defect on her own whereas the Governmental Tort Immunity Act sets the duty threshold for the City at actual or constructive notice of the unsafe condition.
We agree and find the notes on use to IPI Civil 3d No. B120.09 to be instruсtive. They provide that the instruction “would not be appropriate where liability is predicated on negligent activities by the property owner or his agents” and that in such a case, “normal negligence instructions would apply.” IPI Civil 3d No. B120.09, Notes on Use, at 355-56. Such is the case here. Plaintiffs complaint is based upon the City’s negligence in failing to repair a city sidewalk. Accordingly, the circuit сourt should have given the normal negligence instruction, IPI Civil 3d No. B21.02, rather than IPI Civil 3d No. B120.09, which improperly added an element to plaintiffs burden of proof based on the “open and obvious doctrine.” See generally Ide v. City of Evanston,
For the foregoing reasons, this cause is reversed and remanded for a new trial not inconsistent with this order.
Reversed and remanded.
BUCKLEY and GALLAGHER, JJ., concur.