FOURTH DIVISION November 12, 2010
No. 1-09-3255
MARIA ORTIZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) JESUS PEOPLE, U.S.A., a Not-For-Profit Corporation, ) Honorable d/b/a The Friendly Towers, ) Thomas Chiola, ) Judge Presiding. Defendant-Appellant ) ) (The City Of Chicago, a Municipal Corporation, ) ) Defendant-Appellee). )
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
Defendant Jesus People, U.S.A., a not-for-profit corporation, d/b/a The Friendly Towers
(Jesus People), in this personal injury action appeals from a jury verdict in favor of plaintiff Maria
Ortiz. On appeal, defendant contends the circuit court improperly denied its motions for
judgment n.o.v., a new trial, and reconsideration of an earlier grant of summary judgment in favor
of defendant City of Chicago, a municipal corporation (the City), in defendant’s claim for
contribution. We affirm.
BACKGROUND
In the instant case, plaintiff was hit and injured by a falling tree limb. The tree was located
on defendant’s property and the limb, which extended over the public sidewalk, measured more 1-09-3255
than 19 feet and was estimated to be up to 14 inches in diameter.
Defendant had owned the property at 920 West Wilson Avenue in Chicago, which is a
large lot with a 10-story building used for low income senior housing and other ministries, for
almost 20 years. At the time of the incident, there were four trees in the garden, which was
separated from the sidewalk by a 6½-foot-tall brick wall. The tree at issue, a Siberian elm, was
adjacent to the wall on the inside and it had a large limb that extended out over the wall above the
public sidewalk. The tree was there when defendant bought the property, and it, like the rest of
the garden, was maintained by Jesus People member Ted Jindrich, who occasionally trimmed low-
hanging branches.
On May 11, 2003, plaintiff, her husband Flavio Cali, Sr., and two of their children were
riding their bicycles on Wilson Avenue. Plaintiff and her daughter Ruby Cali rode ahead of her
husband and son Flavio Cali, Jr., and stopped briefly on the sidewalk at 920 West Wilson to wait
for them. It was a very windy day. While plaintiff and Ruby stood on the sidewalk, a large limb
fell from the Siberian elm, knocking the two of them to the ground. Ruby did not see the tree
strike plaintiff and plaintiff herself remembered seeing something shadow-like coming toward her,
then she lost consciousness. Ruby was only slightly injured and she told Flavio, Jr., that their
mother was hurt. Plaintiff’s husband arrived on the scene and went to the hospital with plaintiff,
who had regained consciousness.
A member of the Jesus People, Tom Cameron, saw the tree limb fall after an
extraordinarily strong gust of wind. One of the responding police officers, Chicago police
sergeant Thomas Banich, said that when he arrived at the scene, it was windy to the point of being
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“violent,” and all the trees were blowing. The limb of the Siberian elm tree had fallen on an
overhead wire and caused the light pole to snap and fall also. Photographic evidence shows that
the fallen limb blocked the entire pedestrian section of the sidewalk and extended into the street;
the record reflects that the limb measured more than 19 feet and was estimated to be up to 14
inches in diameter.
Plaintiff’s injuries required several surgeries; after a second surgery, her mouth was wired
shut for six weeks. Almost a year later, plaintiff required two more corrective surgeries, one of
which involved taking pieces of her rib to reconstruct her nose.
In April 2005, plaintiff and the two children filed a complaint against defendant and the
City for premises liability and negligence. The children claimed emotional distress. Defendant
subsequently filed a counterclaim against the City, which later moved for summary judgment.
In January 2006, the court granted the City’s motion, holding that the City had no duty as
to a tree located on defendant’s property.
The matter proceeded to a jury trial that was held over the course of several days in
September 2009. At trial, plaintiff, her husband, her son Flavio, Jr., and her daughter Ruby
testified about the incident. In addition to several other individuals who testified, including
Jindrich, and witnesses to the fallen tree limb, three experts testified about the characteristics of
the tree at issue: Charles Schiek for plaintiff, Harold Hoover for defendant, and John Lough, an
employee of the City who was not hired by either party.
The evidence established that the tree was a Siberian elm, a species considered undesirable
in urban environments because it was brittle and posed a hazard of falling branches. This
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particular tree had “codominant stems,” meaning that it had two main trunks that split at a narrow
angle, rather than a single main trunk. The narrow angle at which the trunks met created a
structural weakness in the tree; one aspect of this was the “included bark” that developed, making
the joint between the trunks too weak to support their weight. Defendant did not hire
professionals to inspect or maintain the tree, although it did its own maintenance by trimming
low-hanging branches over the public sidewalk.
Before closing argument, the court granted defendant’s motion for directed verdict on the
children’s claims. On September 25, 2009, after the jury returned a verdict in favor of plaintiff,
the court entered judgment and awarded plaintiff $686,831.17.
Defendant filed a posttrial motion seeking judgment n.o.v. or a new trial, and also
reconsideration of the summary judgment granted in favor of the City. On November 10, 2009,
the court entered an order denying defendant’s motion.
Defendant timely filed its appeal from the November 10, 2009, postjudgment order; the
September 25, 2009, judgment order (referred to in defendant’s notice of appeal as the “judgment
order entered on September 21, 2009”); the September 25, 2009, jury verdict (also referred to in
the notice of appeal as dated from September 21, 2009); the January 23, 2006, order granting
summary judgment for the City, and from all prior and collateral rulings, findings, and orders in
this matter.
ANALYSIS
Defendant contends the court improperly denied its posttrial motion for both judgment
n.o.v. and for a new trial.
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Initially, we note that the standards that are used to determine whether a judgment n.o.v.
should be granted differ from those used in determining whether to grant a new trial. McClure v.
Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 131-32 (1999); Maple v. Gustafson, 151 Ill. 2d
445, 453 (1992). The standard for a judgment n.o.v. is the higher of the two (Gaffney v. City of
Chicago, 302 Ill. App. 3d 41, 59-60 (1998)): a motion for a judgment n.o.v., as compared to a
motion for a new trial, requires that a “more nearly conclusive evidentiary situation” be presented
before a judgment n.o.v. can be entered than is required to justify a new trial (Pedrick v. Peoria &
Eastern R.R. Co.. 37 Ill. 2d 494, 509-10 (1967); see also Maple, 151 Ill. 2d at 453-54).
A judgment n.o.v. is proper only where “ ‘all of the evidence, when viewed in its aspect
most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict
based on that evidence could ever stand.’ ” Maple, 151 Ill. 2d at 453, quoting Pedrick, 37 Ill. 2d
at 510. In considering a motion for a judgment n.o.v., a court is not concerned with the credibility
of witnesses, nor does it weigh the evidence. Maple, 151 Ill. 2d at 453. It may only consider the
evidence, and inferences therefrom, in the light most favorable to the party opposing the motion.
Maple, 151 Ill. 2d at 453.
With such consideration, then, the motion presents a question of law as to whether there is
a total failure or lack of evidence to prove any necessary element of the plaintiff’s case. York v.
Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006). However, if
reasonable minds might differ as to inferences or conclusions to be drawn from the facts
presented, the entry of judgment n.o.v. is not appropriate. York, 222 Ill. 2d at 178. Decisions on
motions for judgment n.o.v. are reviewed de novo. McClure, 188 Ill. 2d at 132.
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In an action for negligence, the plaintiff must allege facts sufficient to show the existence
of a duty, a breach of that duty, and injury to the plaintiff that is proximately caused by that
breach. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004); Gouge v. Central Illinois
Public Service Co., 144 Ill. 2d 535, 542 (1991). The existence of a duty is a question of law to be
determined by the court. Gouge, 144 Ill. 2d at 542.
To determine the existence of a duty in a particular case, the court must weigh the
reasonable foreseeability of the injury, the reasonable likelihood of the injury, the magnitude of the
burden of guarding against it, and the consequences of placing that burden on the defendant.
Gouge, 144 Ill. 2d at 542; Polak v. Person, 232 Ill. App. 3d 505, 510 (1992). Although the
foreseeability of the injury is an important factor in deciding whether a duty exists, it is not solely
determinative of that question. Hutchings v. Bauer, 149 Ill. 2d 568, 571 (1992); Polak, 232 Ill.
App. 3d at 511-12. Rather, the foreseeability of harm must be balanced against the burdens and
consequences resulting from the recognition of a duty. Hutchings, 149 Ill. 2d at 571.
Here, defendant first contends that its motion for judgment n.o.v. should have been
granted because, it asserts, it owes a general duty “only to exercise reasonable care to prevent an
unreasonable risk of harm arising from a defective or unsound tree.” It claims that its Siberian
elm tree was not defective or unsound “simply because professionals considered its species
problematic and undesirable.” Defendant further asserts that it had neither actual nor constructive
notice as a condition precedent for liability and that constructive notice could not be established
by expert knowledge of defects alone, but only by what would be recognizable to a layperson.
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The general rule set forth in section 363 (natural conditions) of the Restatement (Second)
of Torts provides that “a possessor of land *** is [not] liable for physical harm caused to others
outside of the land by a natural condition of the land.” Restatement (Second) of Torts §363(1), at
258 (1965). The “natural condition of the land” includes “the natural growth of trees *** and
other vegetation upon land not artificially made receptive to them.” Restatement (Second) of
Torts §363, Comment b, at 258 (1965). However, there is an exception to the general rule of
nonliability that pertains to a possessor of land “in an urban area” where such possessor is
“subject to liability to persons using a public highway for physical harm resulting from his failure
to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of
trees on the land near the highway.” Restatement (Second) of Torts §363(2), at 258 (1965).
Contrary to defendant’s assertion that this case presents an issue of first impression, our
courts have previously considered duties owed by urban landowners specifically regarding trees
on their property. In Mahurin v. Lockhart, the court expanded the section 363(2) Restatement
(Second) duty, holding: “a landowner in a residential or urban area has a duty to others outside of
his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective
or unsound trees on the premises, including trees of purely natural origin.” Mahurin v. Lockhart,
71 Ill. App. 3d 691, 693 (1979).
In subsequent decisions, the courts have noted the general trend “to place greater
responsibility upon the owner of the property where the tree is located.” Chandler v. Larson, 148
Ill. App. 3d 1032, 1037 (1986). In Chandler, the roots from the defendant urban landowner’s tree
caused damage to a neighbor’s garage, leading the court to consider, at length, the duties for
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urban landowners in distinction of the general rule of nonliability:
“ ‘It is scarcely suited to cities, to say that a landowner may escape
all liability for serious damage to his neighbors, merely by allowing
nature to take its course. *** [W]hen the tree is in an urban area,
*** the landowner now has a duty of reasonable care, including
inspection to make sure that the tree is safe.’ ” Chandler, 148 Ill.
App. 3d at 1037, quoting N. Keeton, Prosser & Roman on Torts
§57, at 391 (5th ed. 1984)).
The court ultimately concluded that the defendant owed an adjoining landowner a duty of
reasonable care that “would necessarily include the taking of reasonable steps to prevent damage”
to the neighbor’s garage caused by the roots of one of the defendant’s trees. Chandler, 148 Ill.
App. 3d at 1038.
More recently, although in a case involving injury from a fallen tree on a rural highway,
the court again considered the rationale for the urban landowner rule. Eckburg v. Presbytery of
Blackhawk of the Presbyterian Church, 396 Ill. App. 3d 164, 169-70 (2009). The court examined
the explanatory comments for section 363 of the Restatement (Second) of Torts, which
acknowledge that trees pose threats to public highways and that “in an urban area, where traffic is
frequent, land is less heavily wooded, and acreage is small, reasonable care for travelers may
require the landowner to inspect all trees.” Eckburg, 396 Ill. App. 3d at 170. There, the case had
been dismissed before numerous questions of fact could be determined, but the allegations that the
defendant was warned of the danger and failed to inspect or prune the trees after being placed on
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notice were found sufficient to withstand dismissal. Eckburg, 396 Ill. App. 3d at 174-75. In
reaching this conclusion, the reviewing court rejected an urban-rural distinction of duties in favor
of an approach employing a traditional negligence analysis that would take into consideration
various factors specific to the location and the incident, including the condition of the tree and the
burden of inspecting and removing the danger. Eckburg, 396 Ill. App. 3d at 173-74.
Of defendant’s various contentions disclaiming a duty, its central point is the one
concerning notice. Defendant asserts that it had neither actual nor constructive notice and that
expert knowledge alone could not establish constructive notice, which could only be established
by what would be recognizable to a layperson. Since it remedied the only “known” unsound
condition of the tree by pruning low-hanging branches, and since there was no other “unsound
condition” that was “readily observable,” defendant contends it owed no duty.
However, defendant relies on case law from other jurisdictions in support of its claims
about lack of notice, attempting to distinguish Illinois case law as pertinent only to the pleading
stage. Defendant asserts this case presents a unique issue because it involves the question of duty
in relation to evidentiary showings made at trial. In support of this position, defendant claims it
found no case in any jurisdiction where the size of a tree limb alone was held to convey
constructive notice to the landowner of a dangerous condition. This, like other points raised by
defendant, is unavailing, as is defendant’s reliance on foreign law.
Contrary to defendant’s claims of lack of notice of a defect or of a defect established only
by expert testimony, defendant admits that a large limb of the Siberian elm tree hung over the
public sidewalk. Resorting to foreign law is not necessary because under Illinois law, an urban
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landowner owes a duty of reasonable care that includes taking reasonable steps to prevent injury.
See Chandler, 148 Ill. App. 3d at 1038. Aside from the fact that the property was located in
Chicago, an urban area, the tree was, by defendant’s own admission, one of only four in
defendant’s garden and, as such, obviates any need for a balancing of the burden of inspection and
removal of the danger with the potential for harm. See Eckburg, 396 Ill. App. 3d at 173-74.
Most importantly, the tree was adjacent to a public sidewalk on a busy public street and a very
large limb extended over that sidewalk. Thus, reasonable care would involve inspection of and
maintenance of the tree to prevent an injury to travelers on the public sidewalk. See Eckburg,
396 Ill. App. 3d at 170; Chandler, 148 Ill. App. 3d at 1038.
Defendant asserts that it provided reasonable care by trimming the low-hanging branches.
Further, it relies heavily on the fact that its personnel did not see any visible defect to support its
claim that it was not on notice and, therefore, owed no duty. As previously noted, to determine
the existence of a duty in a particular case, the court must weigh the reasonable foreseeability of
the injury, the reasonable likelihood of the injury, the magnitude of the burden of guarding against
it, and the consequences of placing that burden on the defendant. Gouge, 144 Ill. 2d at 542.
As the court recognized at the posttrial hearing, in assessing the duty of a property owner with a
tree “hanging out over a public walkway,” the jurors were “very pragmatic.” Moreover,
consistent with the verdict, the record reflects, as noted by the court, that it would have been easy
to obtain information about the condition of the tree and, considering defendant’s years of
ownership of the property and the tree, the size of the limb, and the fact that it was over the public
walkway, “it was incumbent upon [defendant] to find out and to take appropriate action.”
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The jury’s determination that defendant’s inaction constituted a breach of its duty and its
verdict in favor of plaintiff does not present a “nearly conclusive evidentiary situation” required
for granting a motion for judgment n.o.v. See Maple, 151 Ill. 2d at 453-54. Here, we cannot say
that the record reflects a total failure or lack of evidence to prove any necessary element of
plaintiff’s action. See York, 222 Ill. 2d at 178. Accordingly, the denial of defendant’s motion for
judgment n.o.v. was proper.
Defendant next contends the court improperly denied its motion for a new trial. In
conjunction with this, defendant asserts that: the jury “effectively held [it] strictly liable” because
professionals disfavor the species; it was held liable for a tree that was patently healthy but had
latent conditions that a nonprofessional would not recognize; and it was denied a fair trial by
plaintiff’s use of experts, whose professional knowledge was allegedly “substituted” for a
layperson’s, and who allegedly testified about “extravagant” preventive measures that were
irrelevant without notice. Defendant also claims additional errors denied it a fair trial.
A new trial is proper if, after weighing all the evidence, the circuit court determines that
the verdict is contrary to the manifest weight of the evidence. McClure, 188 Ill. 2d at 132. A
verdict is contrary to the manifest weight of the evidence where the opposite conclusion is clearly
evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the
evidence. Maple, 151 Ill. 2d at 454. The standard of review for granting a new trial is deferential
to the lower court. Boll v. Chicago Park District, 249 Ill. App. 3d 952, 958 (1991). A reviewing
court will not reverse the lower court's decision as to a new trial unless it finds an affirmative
showing that the lower court abused its discretion. McClure, 188 Ill. 2d at 132-33; Maple, 151
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Ill. 2d at 455. That is, a clear showing of an opposite conclusion is required to disturb a jury’s
verdict where the evidence is conflicting. Boll, 249 Ill. App. 3d at 958. In making such
determination, the reviewing court considers whether the jury’s verdict is supported by the
evidence and whether the losing party was denied a fair trial. Maple, 151 Ill. 2d at 455.
In the instant case, the record establishes that the jury’s verdict was not contrary to the
manifest weight of the evidence, nor was the opposite conclusion clearly evident or the jury’s
verdict unreasonable or arbitrary. Rather, the evidence presented at trial established that
defendant failed to take reasonable measures to prevent harm from the very large overhanging
tree limb to travelers on the public sidewalk. Thus, the verdict finding defendant liable for
negligence was supported by the evidence. Contrary to defendant’s contentions about strict
liability and professional knowledge of experts, there was no abuse of discretion in the denial of a
new trial. See McClure, 188 Ill. 2d at 132-33.
None of the additional errors claimed by defendant change this conclusion. Of those,
defendant first asserts that the court’s failure to bar the children’s claims for negligent infliction of
emotional distress, which were dismissed before closing arguments, amounted to an unfair trial.
Defendant argues there was no corrective instruction once the children’s claims were dismissed
and asserts that the children’s presence “at the party table as full co-plaintiffs” resulted in an
increased amount in the jury’s award for pain and suffering. This is mere speculation. While
defendant complains that there was no corrective instruction, the portion of the record it cites, the
instructions conference, shows that it did not request such instruction. The cited instructions
conference shows that defendant referred to its objection on the record, which was to the
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children’s emotional distress claims. Again, those claims were dismissed. Once the court
determined that the children were not within the zone of danger and dismissed the claims, no
request for a corrective instruction was made by defendant. Thus, the record does not reflect that
either the dismissal of the children’s claims or their participation in the trial resulted in unfairness
to defendant.
Next, defendant claims the court’s permission for plaintiff to use a family acquaintance as
interpreter for Flavio Cali, Sr., at trial resulted in unfairness because the court was aware of the
“potential for irregularity” with such interpreter. However, defendant does not claim that there
actually was such irregularity or mistranslation but, rather, indicates that it could not know
whether the interpreter was skillful and precise. Further, Flavio, Sr., was a minor witness who
was not present at the scene when the tree limb struck plaintiff. His testimony largely concerned
his actions after the fact, waiting for the ambulance and accompanying plaintiff to the hospital,
and the extent of plaintiff’s injuries. Therefore, in this instance, the record does not reflect that
the asserted error of plaintiff’s use of an acquaintance as interpreter resulted in an unfair trial.
Defendant next claims the trial was unfair because the court refused to allow it to present
a news video at trial that purportedly depicted the windy conditions on the day of the incident.
The record reveals that defendant failed to “discover” this news video during the five years since
the case had been filed, or tender it during discovery, but sought to, in the court’s words,
“dump[]” it on plaintiff on the eve of trial. The denial of defendant’s request was not an abuse of
discretion and did not result in an unfair trial.
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Finally, defendant asserts that certain remarks about the condition of defendant’s property
made by plaintiff’s counsel resulted in an unfair trial in that those remarks constituted an attempt
to deliberately prejudice defendant. The excerpt of trial transcript cited by defendant shows that,
after defense counsel’s objection was sustained, plaintiff’s counsel began to state purported legal
authority for the admissibility of the answer she sought to elicit. When the court again stated that
the objection was sustained, counsel moved on. Contrary to defendant’s claim, those comments
did not result in an unfair trial. For the reasons previously discussed, none of the asserted errors
deprived defendant of a fair trial and, on those bases also, the denial of the motion for a new trial
was not improper.
Finally, defendant contends that its posttrial request for reconsideration of the summary
judgment granted years earlier in the City’s favor was improperly denied.
The purpose of a motion to reconsider is to bring to the court’s attention (1) newly
discovered evidence not available at the time of the hearing; (2) changes in the law; or (3) errors
in the court’s previous application of the law. Stringer v. Packaging Corp. of America, 351 Ill.
App. 3d 1135, 1140 (2004). Decisions to grant or deny motions for reconsideration fall within
the court’s discretion and will not be disturbed absent an abuse of such. Stringer, 351 Ill. App. 3d
at 1140.
Summary judgment should be granted where the pleadings, depositions, affidavits,
admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2008); Swope v. Northern Illinois Gas
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Co., 251 Ill. App. 3d 850, 853 (1993).
The City had moved for summary judgment on the basis that the tree was on defendant’s
property and, for that reason, the City had no duty to maintain it. The gist of defendant’s
argument in its motion for reconsideration was that the court improperly failed to consider the
overhang of the tree limb to be the City’s duty; it alleged that the court’s duty inquiry
improperly focused on “the property line, to defendant’s property” when the proper inquiry would
have been to “stand on the City sidewalk and look up.” On appeal, rather than presenting any
new authority, defendant relies primarily upon two pre-1935 cases, which it acknowledges are not
binding as precedent. Moreover, defendant reiterates that the tree was on its own property.
Here, the court properly ruled that the City did not owe a duty to maintain or prevent
injury from a tree on defendant’s private property. See Ware v. City of Chicago, 375 Ill. App. 3d
574, 581 (2007) (no duty to prevent injury from porch collapse on private property); Donovan v.
Village of Ohio, 397 Ill. App. 3d 844, 849-50 (2010) (no duty to prevent injury from fire on
private property); Stigler v. City of Chicago, 48 Ill. 2d 20, 24-25 (1971) (no duty to prevent
injury from lead paint on private property). The City did not owe a duty to prevent injury from
the overhanging tree limb. Accordingly, summary judgment in its favor was properly granted.
The court did not abuse its discretion in denying defendant’s motion to reconsider the grant of
summary judgment.
CONCLUSION
For all of the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
GALLAGHER, P.J., and O’BRIEN, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
MARIA ORTIZ,
Plaintiff-Appellee,
v.
JESUS PEOPLE, U.S.A., a Not-For-Profit Corporation, d/b/a The Friendly Towers,
Defendant-Appellant
(The City of Chicago, a Municipal Corporation,
Defendant-Appellee).
Appellate Court of Illinois First District, FOURTH DIVISION
November 12, 2010
Justice Margaret O'Mara Frossard authored the opinion of the court:
Presiding Justice Michael J. Gallagher and Justice Sheila M. O’Brien concur.
Appeal from the Circuit Court of Cook County. The Hon. Thomas R. Chiola, Judge Presiding.
COUNSEL FOR DEFENDANT-APPELLANT Stellato & Schwartz, Ltd., Chicago, IL 60602 OF COUNSEL: Esther Joy Schwartz, Theodore W. Pannkoke, Thomas A. Kiepura, and Anthony G. Karamuzis
COUNSEL FOR PLAINTIFF-APPELLEE Law Office of Josette Belvedere, Chicago, IL 60610
COUNSEL FOR DEFENDANT-APPELLEE Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago, IL 60602 OF COUNSEL: Benna Ruth Solomon, Myriam Zreczny Kasper and Kerrie Maloney Laytin
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