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First District reverses part of Cook County ruling over woman's sidewalk injury

By Jonathan Bilyk | Nov 14, 2013

A trust that owns land leased by Gibsons Steakhouse on Rush Street will need to go back to court to persuade a judge it is not liable for a damaged sidewalk that a Philadelphia woman claims snagged her shoe and broke her foot.

In a Nov. 7 unpublished order, a panel of the First District Appellate Court affirmed in part and reversed in part Cook County Circuit Court Judge Bill Taylor's decision to enter summary judgment in favor of the defendants and against plaintiff Rita DeVecchis.

Justice Nathaniel R. Howse Jr. delivered the court's order. Justices James Fitzgerald-Smith and James R. Epstein concurred.

DeVecchis had sued the owners and operators of Gibsons, the City of Chicago and an entity known as Trust No. 55241 of the American National Bank and Trust Company of Chicago, which owns the property on which Gibson’s operates, over her alleged injuries.

Her suit stemmed from an August 2003 incident during DeVecchis’ visit to Chicago.

At that time, DeVecchis and her husband were staying at a hotel near the Gibsons property in the 1000 block of North Rush Street in Chicago. The couple decided on Aug. 27 to walk to dinner at Gibsons.

Because Gibsons is located in the middle of that city block, the couple opted not to walk to the end of the block and cross Rush Street at a designated public crosswalk and instead, crossed in the middle of the block, approaching Gibsons near its valet parking station.

Upon stepping up over the curb and onto the sidewalk, DeVecchis claimed her shoe became lodged in a depression in the sidewalk. She did not fall, however, as she was caught by her husband.

But she argued that the action of dislodging her shoe from the sidewalk left her with pain in her heel.

The couple opted not to endure an hour-long wait for a table at Gibsons that night and dined elsewhere. When they returned to Gibsons the next evening for dinner,  DeVecchis asserts she informed Gibsons' management of the incident at that time.

A manager for Gibsons, however, denied speaking with her.

DeVecchis did not seek medical treatment until returning home to Philadelphia, at which time she was told one of the bones in her left foot had broken in two places.

She then filed suit, claiming Gibsons, the city and the property owner were liable for not properly maintaining the sidewalk and for not warning her of the defect in the sidewalk.

In response, Gibsons noted that the sidewalk is public, and thus, not its concern.

The city argued it was protected by tort immunity laws.

Taylor, the circuit judge, granted summary judgment in favor of all defendants, despite not receiving responses from the property owners, Trust No. 55241.

DeVecchis appealed, arguing that Gibsons, by having a valet service for its restaurant on the sidewalk, by having an awning over the sidewalk, and by instructing employees to sweep the sidewalk regularly, had appropriated the sidewalk for its own business use, and thus, was liable to maintain it or at least to be aware of any defects in the sidewalk that could cause injury.

She also argued that the failure to respond by Trust No. 55241 had created enough doubt over who might own and be responsible for the sidewalk maintenance to have precluded summary judgment in the trust’s favor.

The appeals panel disagreed with DeVecchis’ arguments concerning Gibsons “appropriation” of the sidewalk.

In its unpublished order, the panel determined that the valet service, awning and cleaning maintenance does not mean Gibsons had any control over the sidewalk, nor should it have known that a “crack between the curb and sidewalk” outside the normal path leading to its front door constituted a danger to its patrons.

The justices did, however, agree with DeVecchis’ contention that the trust's failure to reply to DeVecchis raised enough legal questions as to whether the trust “controlled” the land on which the sidewalk sits.

Noting that the City of Chicago claims only to hold the public right-of-way, and not the land itself, the appeals panel determined that Taylor’s summary judgment in favor of the trust was improper and the question needs to be retried.

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