                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                     Martinelli v. City of Chicago, 2013 IL App (1st) 113040




Appellate Court            DONALD MARTINELLI and ANNETTE MARTINELLI, Plaintiffs-
Caption                    Appellees, v. THE CITY OF CHICAGO. Defendant-Appellant (SBC,
                           n/k/a AT&T, Intervenor).



District & No.             First District, Fourth Division
                           Docket No. 1-11-3040


Filed                      April 25, 2013


Held                       A verdict for plaintiffs was affirmed in an action arising from one
(Note: This syllabus       plaintiff’s loss of a leg when he was struck by a motorist at a jobsite
constitutes no part of     where employees of defendant city were working on underground water
the opinion of the court   lines and plaintiff was engaged in protecting adjacent telecommunication
but has been prepared      cables from harm, since the evidence showed that just before the
by the Reporter of         accident, the city crew removed the barricades and flagman present for
Decisions for the          safety purposes at the site when the crew went on an extended lunch
convenience of the         break and that negligence was the proximate cause of plaintiff’s injury
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-L-11846; the
Review                     Hon. Irwin J. Solganick, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Appeal                      Solomon, Myriam Zreczny Kasper, Sara K. Hornstra, and Stephen G.
                            Collins, Assistant Corporation Counsel, of counsel), for appellant.

                            Michael W. Rathsack, of Law Office of Michael W. Rathsack, and Mark
                            E. McNabola, of McNabola Law Group, both of Chicago, for appellees.


Panel                       PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
                            opinion.
                            Justices Epstein and Pucinski concurred in the judgment and opinion.


                                              OPINION

¶1           On a daily basis in the City of Chicago (City), there are numerous roadway construction
        projects that have an impact upon the safe flow of automobiles and pedestrians, as citizens,
        workers and visitors travel across its many streets. Maintenance of the City’s vast and aging
        infrastructure is a never-ending process, with public and private employees often working
        together to erect, maintain or repair streets, bridges, viaducts and the like, along with sewer
        and water systems. This case reveals unfortunate consequences of poor planning and
        execution of such projects.
¶2           On February 2, 2002, plaintiff Donald Martinelli (Martinelli) and his coworker, Raymond
        Santiago, worked for a telecommunications company and were assisting City workers who
        were involved in a somewhat mundane water department job on Milwaukee Avenue, near
        its intersection with Leavitt Street. During the morning construction work, the City had
        established certain safety provisions including barricades (in the form of large vehicles) and
        flagmen, but those protections were removed when City workers went on an extended lunch
        break, leaving the telecommunications workers in the largely unprotected workzone. During
        this time an admittedly distracted motorist, Oscar Soto, lost control of his vehicle, glanced
        off Santiago’s truck and pinned Martinelli to the bumper of his truck, traumatically
        amputating his left leg above the knee. Martinelli and his wife sued the City for negligence
        in the manner and method that it conducted its construction work and the attendant safety
        considerations.1 At trial, the jury was instructed to consider whether the City was negligent
        for (1) blocking the southeast bound lanes of traffic, forcing traffic to drive into the
        undivided northwest lane; (2) failing to erect a temporary traffic control zone with advanced
        warning in order to create an unambiguous path around the work zone; (3) failing to use


                1
                 Soto as well as Manual Gonzalez, who owned the vehicle driven by Soto during the
        incident, were originally defendants in this action but were subsequently dismissed as defendants
        following a settlement with plaintiffs. In addition, Martinelli’s employer, SBC, n/k/a AT&T, was
        granted leave to intervene in this action but is not a party to this appeal.

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     flagmen and barricades; and (4) failing to create a buffer zone between workers and
     motorists. The jury returned a verdict of $6,952,000 for Martinelli’s injuries and his wife’s
     loss of consortium. The jury also answered in the negative a special interrogatory that sought
     to blame the distracted driver as being the “sole proximate cause” of Martinelli’s injury. The
     City appeals, claiming, inter alia, that the trial court should have entered a judgment
     notwithstanding the verdict (judgment n.o.v.) because the distracted driver was the sole
     proximate cause of the accident and because the City should have been found to be immune
     for any failure to provide traffic control devices or warning signs. For the reasons that follow,
     we affirm.

¶3                                       BACKGROUND
¶4       Over the course of this week-long jury trial, the parties presented numerous witnesses.
     Plaintiffs testified on their own behalf as well as presenting the testimony of Santiago and
     Soto. Plaintiffs also presented medical testimony, expert testimony from a civil engineer, and
     the testimony of several employees of the City’s water department, including Michael
     Dwyer, Neil Kelly and Donald Stewart. In addition, the City presented the testimony of an
     investigator from the Chicago police department, an expert in traffic crash reconstruction,
     and Sonia Kalfas, who witnessed the incident.
¶5       Milwaukee Avenue is a diagonal, arterial thoroughfare that runs in a northwest/southeast
     direction in the City. It intersects Leavitt Street in the City’s Bucktown neighborhood, only
     a short distance from a viaduct at Bloomingdale Avenue. On February 2, 2002, the City was
     engaged in water department road work in this general area. Specifically, the City was
     attempting to perform a “cut and seal” job, a relatively common procedure in which a hole
     would be dug through the pavement, allowing access to water lines beneath the street, one
     of which was to be cut and sealed. Thereafter, the pavement would be repaired and the road
     restored to its previous condition. In virtually every such job, the City coordinates with the
     appropriate telecommunications or power company to make sure that the City’s activities do
     not impair any lines or equipment maintained by those entities. Martinelli and Santiago
     worked for SBC and were engaged in marking locations for cables that were beneath the area
     where the work was to be undertaken. The City’s seven-person crew from the water
     department consisted of a foreman, three laborers, a dump truck driver and a hoisting
     engineer. It was later augmented by another engineer who operated a ram hoe which was
     capable of cutting through the cobblestone which lay under the asphalt surface of the
     roadway.
¶6       There was conflicting testimony at trial regarding when Dwyer, the City foreman, arrived
     on the jobsite. According to Santiago, in the late morning, he and Martinelli were already in
     the process of identifying the location of cables (which would alert the City digger) when
     Dwyer arrived. Santiago said Dwyer gave him and Martinelli the specific area in which the
     City intended to do its work, which led them to finish their work. This work involved more
     than just painting on the asphalt road surface, however, as Martinelli had to go underground
     via a manhole to identify the specific location of the cables and send a radio signal to
     Santiago, who would mark the proverbial spot. Their SBC vehicles were nearby, with strobe


                                               -3-
     lights operating. Martinelli and Santiago also put some orange traffic cones in the area where
     they were working and erected a temporary cage around the manhole in which Martinelli was
     working.
¶7       Dwyer’s testimony regarding his arrival time at the Milwaukee jobsite was less than
     consistent. He testified that his worksheets indicated he and his crew were engaged in a job
     in the DePaul neighborhood, on Kenmore near Belden Avenue earlier that morning. His
     worksheets also indicated that his men took a lunch break at a fast food location at
     Wellington and Sheffield, but only after they had arrived at the Milwaukee jobsite. This
     restaurant, however, was located north of the Milwaukee job AND north of the Kenmore job.
     The crew’s circumnavigation would have thus involved finishing up at Kenmore, driving
     south to the Milwaukee job, working briefly, and then driving back, past the Kenmore job,
     to arrive at the restaurant at Wellington and Sheffield. As for his own arrival at the
     Milwaukee site, Dwyer repeatedly testified that he did not remember being at the Milwaukee
     jobsite until after the accident had occurred, despite his worksheets’ indication that he was
     there from 11:29 a.m. to 12:05 p.m. and despite the fact that Santiago testified that Dwyer
     was at the scene giving him information about the location of the water department’s work
     well before the accident occurred. At one point, Dwyer even testified that he was unaware
     that the SBC employees were at the jobsite until he and his crew “pulled up and saw the fire
     truck and ambulance.” In response to questions about the inconsistent entries in his records,
     Dwyer admitted that these were sometimes “fudged.” Furthermore, despite several instances
     where Dwyer claimed a lack of recollection of events prior to the involved accident, as
     described infra, he acknowledged that his crew was involved in barricading and flagging the
     work area before lunch.
¶8       The City had acquired a permit to perform this work that required the City to use
     barricades and flagmen as needed. Dwyer testified that he would not have exposed his
     workers to any potential injury and that he made sure that the work site was safe in various
     ways, including the placement of large City vehicles as barriers to entering the viaduct in the
     southeast bound lane. He also testified that his laborers would have been on both sides of the
     viaduct to slow traffic as it approached the viaduct from both sides. In addition, Dwyer
     testified that as the City’s foreman, he was supposed to ensure that pedestrian and vehicular
     traffic continued at all times on the date in question, without road closures. He further
     testified that his laborers, clad in fluorescent vests, were directing traffic before lunch by
     placing big trucks in a way to alert drivers that they could not drive in that direction and
     directing drivers around the work area. He admitted that he was supposed to keep the area
     safe for all workers, pedestrians and motorists, while repeatedly suggesting that he
     interpreted the permit to mean that his responsibility only related to when he and his crew
     were actively working at the site.
¶9       As the morning’s activities progressed, the City’s workers began their attempts to break
     the pavement. This involved the use of a dump truck, a backhoe and a compressor to power
     the jackhammer. The arrival of the backhoe nearly coincided with the conclusion of the work
     of Martinelli and Santiago. The extent to which the southeast bound lane of Milwaukee was
     closed to traffic was a subject which received some contested testimony at trial, with the City
     endeavoring to prove that traffic could still go through a small part of that lane and the

                                              -4-
       plaintiffs attempting to show that most southeast bound vehicles were going around the
       Bloomingdale viaduct’s center pillar into the northwest bound lane in order to continue
       traveling toward downtown, only to return to the southeast bound lane once they passed the
       viaduct. Santiago and Soto’s testimony established that a number of vehicles were traveling
       in this fashion, including at least one CTA bus.
¶ 10       According to Santiago, after a very short amount of work that accomplished the removal
       of the top two inches of pavement, leaving a hole in the street (the cobblestone required more
       heavy equipment), Dwyer and his crew left, only to return after the accident had already
       occurred. Suffice it to say that the documentary evidence related to the time spent by the
       crew at lunch was inconsistent and at times falsified. This much was essentially conceded
       by Dwyer. In any event, when the City workers left, they took their trucks and most of their
       personal vehicles, along with any employees that were helping move traffic through or
       around the viaduct. Dwyer admitted that on other such occasions, he had left flagmen in
       place. Santiago’s testimony also revealed that a different City vehicle, a ram hoe which was
       capable of digging through the cobblestone underlayment (which the jackhammer could not
       do), arrived while the other City workers were at lunch. This worker proceeded to dig a hole
       through the cobblestone shortly before the accident. That vehicle and the resulting hole were
       depicted in at least one photograph that was taken with the Soto vehicle still at the scene,
       which was admitted into evidence and published to the jury. The operator of the ram hoe, on
       the other hand, testified via evidence deposition that he had not arrived until after the
       accident.
¶ 11       The accident itself was described by various witnesses at trial, although Martinelli
       testified that he did not see Soto prior to the accident. Essentially, the evidence established
       that Soto was operating his vehicle in a southeast direction on Milwaukee Avenue. Soto
       testified that as he approached the viaduct in question, he saw some “stuff” ahead in his lane
       and did not think that he could pass under the viaduct in that lane. Ahead of him, he saw a
       car and followed it as it went around the viaduct pillar and entered the northwest bound lane.
       As he approached Leavitt Avenue after passing under the viaduct, he was alarmed to see
       vehicles approaching him from the opposite direction, causing him to quickly veer back into
       the southeast-bound lane. At the same time, a pack of cigarettes slipped from his lap to the
       floor of the car. Soto’s response was to reach for the pack, which only exacerbated his turn
       to the right and he wound up pinning Martinelli against the bumper of his truck. Soto
       testified that he got out of his car and asked for help from a southeast-bound CTA bus driver
       who had just come through the viaduct in the same manner as he had. Santiago corroborated
       Soto’s version of the path of his vehicle as it approached Martinelli.
¶ 12       Both parties proffered expert witnesses who gave conflicting testimony on the
       appropriateness of the work site from a traffic management and worker safety standpoint.
       Plaintiffs’ expert, Richard Cannon, relied upon the permit, various jobsite documents and
       regulations from the City’s department of transportation, along with the Manual on Uniform
       Traffic Control Devices (MUTCD), which applies to municipalities like the City. He was
       sharply critical of the absence of an overall plan for effectively diverting vehicular traffic and
       protecting workers within the work zone. He presented a plan to the jury of what could have
       been done to establish a safe work zone, by the use of barricades and other safety devices.

                                                  -5-
       Cannon admitted that a properly placed vehicle could represent a safety device under these
       sorts of circumstances, but insisted that it would need to be augmented with other devices.
       In his opinion, had the proper safety zone been established, this accident would not have
       occurred.
¶ 13       The City’s expert, Gary Cooper, did not address establishment of any safety zone in the
       area of the work but, rather, focused on the conduct of Soto, the distracted driver, testifying
       that it would take slightly less than 3.5 seconds for Soto’s vehicle to travel the 150 feet from
       the viaduct to the spot where the collision took place. Soto’s reaction time to any stimulus,
       in his opinion, would have consumed nearly half of that time.
¶ 14       In witness examination and in argument, both parties vigorously pursued their differing
       theories of the real cause of this accident. Martinelli’s lawyers pursued a theory that
       acknowledged Soto’s negligence, while faulting the City for its role in establishing the unsafe
       environment where the accident took place. The ultimate arbiter of these factual issues, the
       jury empaneled to hear the dispute, sided with plaintiffs and specifically rejected the City’s
       sole proximate cause defense with its negative answer to the City’s special interrogatory.

¶ 15                                        ANALYSIS
¶ 16        The City’s arguments on appeal mirror arguments that it made during the discovery and
       trial proceedings of the underlying lawsuit. In various pretrial hearings, the City argued that
       it was immune from any failure to provide traffic control devices or warning signs, pursuant
       to the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745
       ILCS 10/3-104 (West 2010)). It also unsuccessfully attempted to have the case dismissed
       before trial on the sole proximate cause issue and renewed this argument in the form of a
       judgment n.o.v. motion, which was denied at trial. In addition, the City averred that it was
       entitled to a judgment n.o.v. because it “owed no duty” to protect Martinelli from the
       “unforeseeable” negligence of Soto. Finally, on appeal, the City urges us to grant a new trial
       due to adverse and allegedly erroneous evidentiary rulings by the trial court. We will
       examine each of these arguments in turn.

¶ 17                                       A. IMMUNITY
¶ 18       The City’s argument with respect to its immunity for failing to provide traffic control
       devices presents a question of law, which we will review de novo. Hess v. Flores, 408 Ill.
       App. 3d 631, 636 (2011). In addition, a unit of local government, such as the City, is liable
       in tort to the same extent as a private party unless the Act applies. Prough v. Madison
       County, Illinois, 2013 IL App (5th) 110146, ¶ 22. Section 3-104 of the Act provides as
       follows:
           “Neither a local public entity nor a public employee is liable under this Act for an injury
           caused by the failure to initially provide regulatory traffic control devices, stop signs,
           yield right-of-way signs, speed restriction signs, distinctive roadway markings or any
           other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic
           separating or restraining devices or barriers.” (Emphasis added.) 745 ILCS 10/3-104
           (West 2010).

                                                 -6-
       The City’s argument here gains little legal purchase, however, because section 3-104, the
       section which it cites, refers to the absence of any duty to “initially” provide these sort of
       devices. 745 ILCS 10/3-104 (West 2010). In this trial, evidence was presented indicating that
       the City actually provided various forms of devices in an effort to provide a safe work site
       and a safe area for motorist travel. The City was sued here because it removed some of those
       protections while its workers went on an extended lunch break, even though others continued
       to work at the site. Accordingly, section 3-104 does not apply to those bases of negligence.
¶ 19       The City suggests that section 3-104 provides a municipality with absolute immunity
       with respect to the removal of traffic devices, relying on Robinson v. Atchinson, Topeka &
       Santa Fe Ry. Co., 257 Ill. App. 3d 772 (1994). We disagree. In Robinson, the plaintiffs
       asserted that Allen Township had a duty to maintain a sign, providing advance warning of
       a railroad crossing, that had been erected 10 years prior but had been absent for the 3 years
       leading up to the incident. Id. at 773-74. The plaintiffs argued that even if section 3-104
       immunized the township from any duty to initially erect the sign, the township nonetheless
       had a duty to maintain the sign once erected. Id. at 775-76. The appellate court found,
       however, that the case before it did not present a question of maintenance but, rather, the
       plaintiffs were essentially arguing that the township was forever required to keep a warning
       sign on 15th Road. Id. at 776.
¶ 20       At most, Robinson establishes that a municipality has no duty to provide a particular
       traffic device indefinitely. Here, however, no such duty has been suggested. The City’s
       actions in disrupting traffic, implementing traffic devices and removing those devices during
       ongoing road work all occurred within a limited period of time and created the peril that
       immediately led to Martinelli’s loss of limb. Accordingly, Robinson is entirely
       distinguishable.
¶ 21       Additionally, plaintiffs supplied another potential basis for the City’s liability that was
       not based on the City’s failure to act to protect others, as contemplated by section 3-104, but
       rather was based on the City affirmatively causing an injury through its actions. Specifically,
       plaintiffs alleged that the City blocked the southeast-bound lane, forcing the traffic in that
       lane to drive into the northwest lanes. As a result, section 3-104 does not encompass this
       basis for the City’s liability. Although the City submitted a special interrogatory on sole
       proximate cause, it did not similarly test the jury’s verdict relative to the discrete issue of
       duty. Because the jury returned a general verdict, the City must demonstrate that no basis for
       negligence presented to the jury was sound in order to obtain relief. See Lazenby v. Mark’s
       Construction, Inc., 236 Ill. 2d 83, 101 (2010) (a general verdict will be upheld if there is
       sufficient evidence to sustain either legal theory and the moving party failed to request
       special interrogatories). Under these circumstances, even were we to assume that this
       allegation of negligence based on the failure to provide traffic control devices was
       improvidently submitted to the jury, the verdict must be affirmed because the verdict can be
       supported by the remaining allegation of negligence and the Act does not immunize the City
       from liability here. See Robinson v. Washington Township, 2012 IL App (3d) 110177, ¶ 12.

¶ 22                                B. PROXIMATE CAUSE


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¶ 23        The City next contends that the trial court erroneously denied the City’s motion for a
       judgment n.o.v. because the City’s conduct was not a proximate cause of plaintiffs’ injuries,
       an issue that we review de novo. Mull v. Kane County Forest Preserve District, 337 Ill. App.
       3d 589, 591 (2003). In order for the City to prevail here, we would have to conclude that
       when the evidence is considered in a manner most favorable to the nonmovants, plaintiffs,
       the evidence nonetheless so overwhelmingly favors the City that any verdict against the City
       could never stand. See Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37.
       To prove negligence, a plaintiff must demonstrate that (1) the defendant owed the plaintiff
       a duty; (2) the defendant breached that duty; and (3) the breach was the proximate cause of
       the plaintiff’s injuries. Perfetti v. Marion County, Illinois, 2013 IL App (5th) 110489, ¶ 16.
       In addition, proximate cause requires a plaintiff has to establish both “cause in fact” and
       “legal cause.” Rivera v. Garcia, 401 Ill. App. 3d 602, 610 (2010). Cause in fact is established
       if the occurrence would not have happened “but for” the conduct of the defendant. Bourgonje
       v. Machev, 362 Ill. App. 3d 984, 1007 (2005). Furthermore, legal cause is a question of
       foreseeability and whether the injury is of a type that a reasonable person would see as a
       likely result of his or her conduct. Simmons v. Homatas, 386 Ill. App. 3d 998, 1010 (2008).
¶ 24        The City’s overarching argument below and in this court relates to its contention that it
       cannot be held liable for Martinelli’s injuries because the conduct of Soto should be deemed
       to be the sole proximate cause of this occurrence. See Stackhouse v. Royce Realty &
       Management Corp., 2012 IL App (2d) 110602, ¶ 37. In a related way, the City also argues
       that Soto’s conduct could be described as constituting an intervening cause of Martinelli’s
       injuries, thereby removing it from any legal liability. See City of Chicago v. Beretta U.S.A.
       Corp., 213 Ill. 2d 351, 406-07 (2004). In yet another related way, the City urges that it could
       not owe any legal duty because Soto’s conduct was simply unforeseeable. At this point, it
       also bears repeating that the jury answered the City’s sole proximate cause special
       interrogatory in the negative, meaning that it found that the City’s conduct was also a
       proximate cause of Martinelli’s injuries. Under these circumstances, it would be remarkably
       unusual for a trial court or an appellate court to enter a judgment for defendant, the City. See
       Brobbey v. Enterprise Leasing Co. of Chicago, 404 Ill. App. 3d 420, 433 (2010) (the
       question of proximate cause is one for the jury). Based upon the following analysis, we
       respectfully decline the City’s invitation to usurp the role of the jury.
¶ 25        Plaintiffs argue that the evidence in this case more than adequately established both cause
       in fact and legal cause. We agree. The evidence at trial clearly supports the jury’s finding that
       but for the City’s conduct, this accident would not have happened. First, the jury heard that
       the City’s permit required it to provide various measures to ensure safety. The jury also heard
       evidence that the City placed certain vehicles in locations to provide a measure of safety, that
       its laborers served as flagmen to alert motorists of the presence of workers in the roadway
       and that the roadway was partially closed. Testimony at trial also revealed that Dwyer
       decided to break with his crew for lunch, taking their equipment with them, along with the
       workers who were alerting motorists of the work activity. The jury was entitled to find that
       this behavior amounted to an effective abandonment of Martinelli and Santiago which
       allowed this accident to occur. In addition, Soto himself testified that he was confused by
       what was occurring near the scene of the occurrence. He saw that he could not go through

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       the viaduct and assumed that it was okay to just follow the vehicle in front of him, which was
       going around the viaduct’s pillar into the northwest bound lane. He testified that he was
       surprised by the presence of oncoming traffic, which caused him to veer back to the right,
       toward his lane. This put him on a path toward Martinelli, who was unaware that a vehicle
       was headed his way. Soto testified that he would have slowed down if there had been a
       barricade in the area.
¶ 26       Finally, plaintiff’s safety expert testified that this accident would most likely not have
       occurred had the City properly followed the requirements of the Manual on Uniform Traffic
       Control Devices and of the Chicago department of transportation regarding the establishment
       of an effective traffic zone. This clearly supports the finding that plaintiffs supplied adequate
       proof of cause in fact.
¶ 27       Despite this, the City contends that plaintiffs did not and cannot prove legal cause. The
       City vehemently argues that Soto’s continuing conduct in “intentionally” taking his eyes off
       the roadway and purposefully reaching for the slipped pack of cigarettes renders his conduct
       utterly unforeseeable and removes the City from any liability. Furthermore, the City urges
       that its arguably negligent conduct did nothing more than supply a condition that made the
       accident possible, citing a line of cases decided by this court and our supreme court. See
       Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004); First Springfield Bank & Trust v.
       Galman, 188 Ill. 2d 252 (1999); Kirschbaum v. Village of Homer Glen, 365 Ill. App. 3d 486
       (2006); In re Estate of Elfayer, 325 Ill. App. 3d 1076 (2001); Quintana v. City of Chicago,
       230 Ill. App. 3d 1032 (1992); Newsome v. Thompson, 202 Ill. App. 3d 1074 (1990).
¶ 28       These arguments are unavailing, given the rather simple inattention of Mr. Soto. As
       stated, Soto veered back into his lane in the face of unexpected oncoming traffic. According
       to him, this coincided with his cigarettes slipping from his lap to the floor and he
       instinctively looked down and reached for the cigarettes, which caused him to unintentionally
       turn more to the right and hit Martinelli. In making its argument in this regard, the City
       essentially tries to argue that Soto was unforeseeably negligent in his operation of his motor
       vehicle. As one might expect, the City made similar arguments to the jury. In its brief before
       this court, the City faults Soto because he got scared, causing him to turn fast and while
       swerving, he “took his eyes completely off the road to pick [the cigarettes] up.” The City
       chides Soto for striking Martinelli despite the presence of traffic cones and flashing lights
       atop the SBC vehicles, arguing that the collision took place “solely because of that reckless
       act” (emphasis added), exhibiting a “staggering lack of care.” The City claims that this
       collision had nothing to do with “the City’s obstruction of the road” and that the eventual
       outcome was “extremely remote.”
¶ 29       While these arguments correctly reference testimony at trial, they tend to ignore the
       eminently foreseeable inattentive conduct of motorists and the fact that the City itself
       removed several layers of safety which this jury found would have prevented this accident.
       The arguments also ignore the testimony of Dwyer, who freely admitted that it was his duty
       on the date in question to provide safety for all workers, pedestrians and motorists. This was
       to be done by way of barricades and flaggers. Competent evidence at trial established that
       this protection was supplied before and after the City’s workers ate lunch, but not during that
       extended period of time, despite the fact that Martinelli, Santiago and at least one City

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       worker were then engaged in work in that area.
¶ 30        As for the conduct of automobile drivers, despite the City’s suggestion to the contrary,
       it is well known that people do various things that lead to distracted driving. This conduct
       can include: spilling a drink; dropping a cigarette; reaching for an item of food or drink;
       applying makeup; looking at a map; looking for loose change on the seat; or looking away
       from the roadway for any number of other reasons. Stating the obvious, this era’s drivers are
       distracted on a regular basis by their apparent need to remain in constant communication on
       their cell phones or other hand-held devices. This sort of run-of-the-mill distracted driving
       clearly can supply a basis for calling a driver negligent or careless, and no rational thinker
       could think such conduct would be legally unforeseeable. See Gilmore v. Stanmar Inc., 261
       Ill. App. 3d 651, 658 (1994).
¶ 31        We further note that following oral arguments held in this case, we granted the City’s
       motion to cite supplemental authority, including Bentley v. Saunemin Township, 83 Ill. 2d
       10 (1980). As stated therein, “[t]he standard of reasonable conduct may require the defendant
       to protect the plaintiff against that occasional negligence which is one of the ordinary
       incidents of human life, and therefore to be anticipated.” (Internal quotation marks omitted.)
       Id. at 16. The distraction experienced by Soto in this case is one such ordinary incident to be
       anticipated. In addition, applying the Pedrick standard, the court in Bentley found that the
       evidence, when viewed in the light most favorable to defendants, the nonmovants, indicated
       that they should have foreseen the driver’s failure to stop absent a visible stop sign. Id. at 15.
       In that case, evidence showed that the stop sign at issue had been obscured by hanging
       branches. Id. at 12. As in Bentley, applying the Pedrick standard, the City should have
       foreseen that, having blocked a traffic lane and implemented safety measures, the removal
       of those safety measures would negate the ability of the common distracted driver to react
       to danger created by the City’s conduct. Accordingly, we find Bentley supports our
       determination.
¶ 32        Soto’s conduct was admittedly careless. Plaintiffs conceded this fact and the jury clearly
       did not accept the City’s argument that Soto’s conduct was the sole cause where there was
       so much evidence that the City was negligent in planning the construction work, not to
       mention that it solely decided to remove much of the safety that it had previously supplied,
       only to allow its crew to take a lunch that was unauthorized in its length and was lied about
       in City work logs.
¶ 33        As mentioned above, the City claims that its conduct could only amount to a condition
       that made the injury possible and not a legal cause. Relying on Galman, the City claims that
       the accident in which Martinelli was injured was not the type that a reasonable person would
       foresee as a likely result of his conduct. Galman, 188 Ill. 2d at 261. Thus, Galman suggests
       that legal cause cannot be proven if the actor’s conduct was so unforeseeable that no one
       would think that the wrongdoer would act in such a way. As stated, Soto’s conduct was not
       so unforeseeable here.
¶ 34        Our recent decision in Fenton v. City of Chicago, 2013 IL App (1st) 111596, also informs
       our opinion here today. In Fenton, City police responded to a man’s complaint of a domestic
       disturbance involving his girlfriend’s son, who was drunk and disruptive. The police initially


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       offered to arrest the young man, if the victim and the young man’s mother so desired. They
       demurred and the police escorted the young man to his bed and they left the household. Some
       time later, the police were again summoned for the same problem. On this occasion, police
       took the agitator from the home and left him on the sidewalk, near the home, where he was
       to wait for approximately an hour for a ride, despite the fact that the temperature was zero
       degrees and that it was the middle of the night. The police left the young man on the
       sidewalk and they left the area, only to be called again a mere six minutes later, with the
       victim saying that the agitator was breaking into the home. Before police arrived, the victim
       was badly beaten and stabbed, which led to his death. Among other arguments, the City
       argued that the conduct of the agitator returning to the scene was legally unforeseeable or an
       independent intervening cause. Id. ¶ 31. We held to the contrary in Fenton, and the City’s
       arguments here are equally unavailing. Id. ¶ 39.
¶ 35       The City’s causation argument flies in the face of evidence that the City’s own permit
       required it to supply protection for this work site. It also ignores that the City removed much,
       if not all, of this protection when its crew went to lunch. This sort of conduct goes well
       beyond supplying a condition that makes injury possible. In truth, it greatly exacerbated the
       possibility that Martinelli, or Santiago, or some other motorist or pedestrian would be injured
       or killed because of the confusing situation that this work site presented to motorists
       traveling in both directions on Milwaukee Avenue. This was not a matter of “if” an accident
       might occur, but “when” it would occur, the proverbial accident waiting to happen.
¶ 36       Finally, despite the City’s urging, there simply is no requirement in the law that the
       defendant anticipate the specific act or acts of a driver in these circumstances. See, e.g.,
       Dillon v. U.S. Steel Corp., 159 Ill. App. 3d 186 (1987). In the context of this specific
       occurrence, evidence showed that Soto followed a vehicle around the viaduct pillar and then
       had a mere 3.5 seconds, in all likelihood, before the accident occurred. Before he looked for
       the pack of cigarettes, he was confronted by unexpected vehicles coming at him and he
       recognized potential peril. This would necessarily occupy some of this time. With the
       momentary distraction supplied by the cigarettes falling, he had virtually no time to react to
       avoid hitting Martinelli. His actions were clearly negligent or careless, but foreseeable.
       Therefore, the City was not entitled to a judgment n.o.v. and the verdict against it is legally
       supportable vis-à-vis proximate causation.

¶ 37                                 C. EVIDENTIARY RULINGS
¶ 38        The City also argues that, in the event that its other requests for relief are not granted, it
       is entitled to a new trial because of adverse evidentiary rulings made by the learned judge
       below. We review a trial judge’s ruling on admissibility of evidence for an abuse of
       discretion. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003).
¶ 39        At trial, plaintiffs introduced evidence establishing that, after the accident, the City
       reestablished the barricades it had previously put in place and that it put the flagmen back
       in the street in the area of the occurrence. When this issue was first addressed at trial, the City
       failed to object to any questions that sought to establish that it had control of the area from
       the viaduct to the specific area where the accident occurred. As a result, this issue is


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       forfeited. Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 904 (1997).
       Furthermore, as plaintiffs argue in their brief, the City did not acknowledge that it controlled
       this entire area and sought, instead, to establish that it only controlled the area where the
       excavation and accident took place. Accordingly, the evidence offered by plaintiffs would
       be properly admitted as impeachment on the issue of control. Maggi v. RAS Development,
       Inc., 2011 IL App (1st) 091955, ¶ 72. Despite statements to the contrary in its briefs before
       this court, the City very clearly attempted in cross-examination of water department
       employees, such as Dwyer, Kelly and Stewart, to establish that the City’s control was limited.
       Thus, this evidence was proper under these circumstances and the trial court did not abuse
       its discretion, especially given the fact that it instructed the jury that this evidence was
       limited to the issue of control. See Schultz v. Northeast Illinois Regional Commuter R.R.
       Corp., 201 Ill. 2d 260, 273-74 (2002).
¶ 40        Next, the City complains that the trial court erred in admitting a postoccurrence
       photograph that demonstrated the location of the involved vehicles in relation to the location
       of the viaduct. The City finds prejudice in the fact that certain of the vehicles shown in this
       photograph were not present at the time of the accident and that other photographs without
       those vehicles could have been utilized. In response, plaintiffs correctly advise that this
       specific photograph was used by a previous witness, without objection, to again establish the
       issue of control. Accordingly, we find no abuse of the trial court’s discretion or prejudice
       here, especially given that the City admits that at least one of its vehicles was at the scene
       when the collision occurred and since its ram hoe operator was actively working at the site
       at that time.
¶ 41        Finally, the City claims that the trial judge erroneously allowed evidence of its improper
       failure to use certain traffic safety devices. In light of our determination that other evidence
       presented at trial more than adequately supported the jury’s finding that the City was
       negligent, we find no reversible error in this regard. Jackson v. Seib, 372 Ill. App. 3d 1061,
       1076 (2007) (the erroneous admission of evidence does not require reversal where the
       evidence did not materially affect the outcome of trial or no prejudice resulted).

¶ 42                                   CONCLUSION
¶ 43      Accordingly, we affirm the judgment of the circuit court.

¶ 44      Affirmed.




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