Lapidus v. Union Oil Co. of California

536 N.E.2d 898, 181 Ill. App. 3d 116, 129 Ill. Dec. 848, 1989 Ill. App. LEXIS 342
CourtAppellate Court of Illinois
DecidedMarch 22, 1989
DocketNo. 1—88—2472
StatusPublished
Cited by3 cases

This text of 536 N.E.2d 898 (Lapidus v. Union Oil Co. of California) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lapidus v. Union Oil Co. of California, 536 N.E.2d 898, 181 Ill. App. 3d 116, 129 Ill. Dec. 848, 1989 Ill. App. LEXIS 342 (Ill. Ct. App. 1989).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Bessie Lapidus appeals from an order of the trial court granting summary judgment in favor of defendant Union Oil Company of California in this premises liability action which alleges plaintiff sustained personal injuries when she fell while walking across a defect in the driveway of defendant’s gas station.

The complaint alleges that on September 3, 1984, the 77-year-old plaintiff was “walking on or about the driveway” of defendant’s Chicago gas station at a point where the driveway “crosses over [the] public sidewalk.” Plaintiff was “caused to trip and forcibly fall to the pavement because of the presence of [a] cracked, uneven and depressed driveway” which was present due to defendant’s negligence.

Defendant’s answer admitted plaintiff had fallen, but denied the “fall was because of the presence of [a] cracked and uneven and depressed driveway.” Defendant also filed an affirmative defense stating that the sole proximate causes of plaintiff’s alleged injuries were that she “[flailed to keep a proper lookout for where she was walking” and “[flailed to notice cracks and depressions in the pavement which could or might have caused her to slip or trip.”

On October 14, 1986, plaintiff completed sworn answers to interrogatories, which included the following information:

“INTERROGATORY: State in detail where you fell.
ANSWER: Driveway of defendant’s gas station as it crosses over sidewalk area.
INTERROGATORY: State in detail what caused you to fall.
ANSWER: Defective — uneven.”

Plaintiff was admitted to the hospital with a fractured nose, fractured foot, fractured rib, concussion, abrasions, and aggravation to disc disease and osteoporosis.

On December 2, 1986, defendant answered interrogatories indicating that Chicago police officer J. Holder was present at the scene immediately after the accident. Defendant also indicated that it had taken two photographs of the gas station premises in April 1986.

On September 17, 1987, plaintiff’s deposition was taken by defendant. Plaintiff stated that at about 5 p.m. on September 3, 1984, she was walking to the park with her sister-in-law, who is now deceased, near the corner of Western and Pratt in Chicago. It was light outside and the weather was dry. She wore low-heeled shoes which were about two months old. They were walking slowly and she carried only a purse.

Interspersed throughout the deposition, plaintiff was asked about the fall itself. She could recall little about the precise details of the fall.

Plaintiff stated that she saw a driveway.

“A. *** [T]here is a sidewalk there and a driveway. And the sidewalk, it wasn’t even, between the sidewalk and the driveway.
Q. Did you fall on the sidewalk?
A. I fell forward, yes.
Q. But were you on the sidewalk when you fell?
A. I don’t remember.
I was in shock. I really couldn’t tell you.
I fell on the sidewalk near the driveway where it was uneven.
Q. So you fell on the sidewalk near the driveway, correct?
A. Yes.
I lost my footing. It happened so fast, I just fell forward.
Q. So you don’t remember whether you tripped, or whether you slipped?
A. I just fell forward.
Q. Do you know what caused you to fall forward?
A. The unevenness.
Q. Of the concrete of the sidewalk?
A. Yes.
I guess I was closer [than her sister-in-law] to the uneven part of the sidewalk. It was higher than the driveway.
Q. You said you’re not sure whether you tripped or slipped; is that correct?
A. Yes. I don’t remember tripping or slipping; just falling.
Q. The only thing you remember is going forward; correct?
A. Yes.”

Later, defense counsel returned to questions about the location of the accident:

“Q. Was there a driveway near where you fell?
A. Between the sidewalk and the driveway. The sidewalk was a little higher.
Q. The sidewalk was higher than the driveway?
A. Yes. It’s uneven.
Q. Did you fall when you stepped from the sidewalk to the driveway?
A. I don’t remember. It happened so fast.
Q. So you don’t know if you were on the driveway at all when you fell; is that correct?
A. I don’t remember.”

Defense counsel also asked plaintiff to look at two photographs of the comer of Pratt and Western and identify the area where she fell. Plaintiff replied that, as to either photograph, she was unable to tell from the picture where the driveway was located, or on which corner the gas station was located. Defense counsel asked, “So you can’t tell, looking at deposition exhibit no. 2 for identification, where you fell, correct?” Plaintiff replied, “I can’t tell from those pictures.”

On May 16,1988, plaintiff filed an affidavit which stated:

“When we reached an area where the public sidewalk meets with the gas station driveway, my left foot went into a depression located in the driveway and I fell forcibly onto the driveway.
Immediately after I fell I saw that the area where I had stepped was not level in that the gas station driveway was lower than the sidewalk creating a depression in the surface.”

The trial court granted defendant’s motion to strike the affidavit due to its contradiction of the deposition testimony. The trial court also granted defendant’s motion for summary judgment.

Plaintiff contends that the trial court erred in granting summary judgment in favor of defendant. We agree. A motion for summary judgment should not be granted where there exist genuine issues of material fact. (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 500 N.E.2d 454.) The trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the motion’s opponent.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Aalbers v. Lasalle Hotel Properties
2022 IL App (1st) 210494-U (Appellate Court of Illinois, 2022)
Olivarius v. Tharaldson Property Management, Inc.
695 F. Supp. 2d 824 (N.D. Illinois, 2010)
Bellerive v. Hilton Hotels Corp.
615 N.E.2d 858 (Appellate Court of Illinois, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
536 N.E.2d 898, 181 Ill. App. 3d 116, 129 Ill. Dec. 848, 1989 Ill. App. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lapidus-v-union-oil-co-of-california-illappct-1989.