Andrew Thomason Oct. 15, 2013, 11:02am

An appeals panel this month upheld nearly $2 million in damages the City of Chicago was ordered to pay a man who broke his left shoulder in a bicycling accident.

In July 2007, Todd Smart was riding his bicycle in the designated bicycle lane on Cortland Street, which court documents state was rough due to an ongoing resurfacing project.

Smart claims he flew over the handlebars of his bicycle when his front tire became stuck in a gash in the road. He landed about six feet from where his bike abruptly stopped, dislocating his left shoulder, as well as fracturing it in several places.

Smart filed a negligence complaint against the City of Chicago, claiming his wreck and subsequent injuries were the result of the city’s failure to maintain the road in a reasonably safe condition.

The city invoked the Local Governmental and Governmental Tort Immunity Act, asserting that it did maintain the street in a safe condition and it had no responsibility to post warnings or barricades. It also claimed negligence by Smart contributed to his wreck.

Following limited testimony from both sides, Smart asked the trial court to give the jury Illinois Pattern Jury Instruction, Civil, No. 120.02, which states it is the duty of a local public entity, as owner of a property, to make sure the property is reasonable safe for use.

The city argued the court should instead use Illinois Pattern Jury Instruction, Civil, No. 120.08, which requires plaintiffs to prove that they were injured as a result of an unsafe condition on a property that was easily identifiable, and that the defendant knew and was negligent about.

Smart’s attorney objected to the city’s jury instruction request, and the trial court agreed.

The city also submitted a special interrogatory, stating “Was the contributory negligence of Todd Smart, if any, greater than 50% of the proximate cause of his injuries?” The trial court, however, rejected the use of that special interrogatory, stating that it wouldn’t test the general verdict and could mislead or confuse the jury.

The jury then ruled in favor of Smart and awarded him about $1.9 million in damages.

The city immediately sought a new trial, claiming the trial court erred by refusing its special interrogatory, tendering two duty instructions, refusing the city’s requested jury instruction and making numerous, erroneous evidentiary rulings.

The trial court denied the motion, which spurred the city to appeal.

In an opinion issued Oct. 9, a panel of the First District Appellate Court rejected the city’s appeal and upheld the lower court judgment.

Justice Mary Anne Mason delivered the court’s opinion with Justices  P. Scott Neville and Aurelia Pucinski concurring.

Mason wrote in the opinion that the foundation of the city's appeal regarding the jury instructions was that Smart pursued a standard premise liability case against the city.

“Clearly he did not … Thus, in arguing that the trial court erred in refusing the issues and burden of proof instruction applicable in premises liability cases, the City simply misses the mark,” Mason wrote for the panel.

The city argued that it wasn't engaged in any activity on the street because it was not working on the street at the time of Smart's accident, and therefore, the standard premise liability jury instructions were prudent, an idea the appeals panel rejected.

“The City's activity in resurfacing the intersection, a project that was ongoing … and which altered the otherwise safe bicycle path, resulted in” Smart having to swerve his bicycle, which led to his wreck and injuries, Mason wrote.

The appeals panel also rejected the city’s appeal over the trial court's dismissal of its special interrogatory, stating that it didn't conform to the rules governing special interrogatories.

“The form of the special interrogatory was in direct contradiction to the established rule that a special interrogatory must be phrased as a single, straightforward question,” Mason wrote, adding that the panel found the interrogatory misleading.

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