The Lyric Opera of Chicago and the owner of the iconic downtown Chicago opera house in which the company performs could be on the hook for injuries suffered by a woman who tripped and fell on the sidewalk outside the opera house, after a state appeals panel ruled the companies had an obligation to repair and maintain that sidewalk because it served as the roof for an underground storage vault used by the opera company.
On March 29, a three-justice panel of the Illinois First District Appellate Court reversed a Cook County judge’s ruling in favor of the Lyric Opera and SL Civic Wacker LLC, the owner of the Civic Opera House.
That judge, Cook County Circuit Judge Arnette R. Hubbard, had ruled the city of Chicago couldn’t try to force the Lyric and SL Civic to cover any damages that may be awarded in the trip-and-fall case.
Terrence J. Lavin
| illinoiscourts.gov
The appeal centered on legal wrangling between the city and the Lyric opera-related companies in a case that dates back to 2017.
At that time, a woman identified as Marilyn Bray sued the city, as well as the Lyric and SL Civic, in Cook County Circuit Court, seeking damages for injuries she allegedly suffered when she tripped and fell on “an uneven seam” on a public sidewalk adjoining the opera house.
The city, however, turned around and sued the opera house owners and the Lyric, asserting the court should force them to indemnify the city in the case and pay the full bill for any sum awarded to Bray.
The city pointed to the existence of a vault under the sidewalk, which the opera companies used for storage. That vault was permitted on city-owned property under an agreement. In that contract, SL Civic agreed to abide by all city ordinances. The city noted that included an ordinance requiring such underground vault space users to keep the sidewalks above their vault “in good and safe condition and repair.”
The city further noted the Lyric used the vault under a lease agreement with SL Civic, which, at a minimum, made the opera company responsible for maintaining a waterproof membrane beneath the sidewalk, to prevent water from leaking into the vault.
In response, SL Civic moved to dismiss the city’s counterclaim, and Lyric sought summary judgment.
Judge Hubbard agreed to both requests. The judge ruled “SL Civic had no duty of care to Bray because ‘nothing show[ed] the permit required SL Civic to maintain the sidewalk above the vaults’ or that ‘SL Civic assumed control over the sidewalk.’”
Judge Hubbard also backed the Lyric’s argument that it was not subject to the city’s permit rules, as it only leased space for storage from SL Civic.
On appeal, however, the Illinois First District Court said the city’s arguments, not the opera companies’, hit the right legal notes.
The justices said they would leave it to a jury to decide if SL Civic and the Lyric must ultimately pay Bray.
But for now, they said, the city has presented enough evidence to allow the case against SL Civic and the Lyric Opera to continue.
As to SL Civic, the appellate justices said: “Here, the circuit court determined that ‘nothing show[ed] the permit required SL Civic to maintain the sidewalk above the vaults.’ Yet, the court ignored that the permit was ‘subject to the provisions of [s]ection 10-28-015 *** of the Municipal Code,’ which clearly imposed that maintenance requirement on SL Civic.”
The justices determined the city can continue its claim against SL Civic seeking court orders requiring the opera house owner to indemnify and contribute at least some money to any damages ultimately awarded to Bray.
And as for the Lyric Opera, the appellate justices said the city can’t require the Lyric to indemnify them.
But the city can seek to require the opera company to contribute to any payout to Bray, because the Lyric “agreed to comply with the Municipal Code provisions in exchange for using the vaults under the sidewalk where Bray fell, and incidentally, Lyric Opera benefitted from such use.”
“… We cannot say as a matter of law that Lyric Opera owed no duty of care to Bray regarding the maintenance, repair, and/or use of the sidewalk where she fell or that it cannot be held liable to her for negligence,” the justices said. “Whether Lyric Opera breached that duty, and if so, whether the breach proximately caused Bray’s injuries are matters for the jury to decide.
In any event, summary judgment should not have been granted to Lyric Opera in this case because the City presented sufficient evidence that could arguably entitle it to recovery under a contribution theory.”
The decision was authored by First District Appellate Justice Terrence J. Lavin. Justices James Fitzgerald Smith and Cynthia Y. Cobbs concurred.
SL Civic has been represented in the action by attorneys Dan Alexander and Mike Mayerck, of Maron Marvel Bradley Anderson & Tardy, of Chicago.
The Lyric Opera has been represented by attorney Kurt E. Olsen, of Krakar & Olsen, of Chicago.
The city was represented by its corporation counsel, Celia Meza, and other attorneys from its Department of Law.