2013 I LApp (1st) 120901 THI RD DIVI SI ON October 9, 2013 No. 1-12-0901 TODD SMART, Plaintiff-Appellee , v. THE CI TY OF CHI CAGO, a Municipa l Corporation, Def endant- Appellant. ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County No. 07 L 14089 The Honor able Eliz abeth M. B udzins ki, J udg e Presiding

. J USTI CE MASON delivere d the judg ment of the c ourt, with opinion. J ustices Neville a

nd Pucinski concurr ed in the judg ment and opinion.

OP INION ¶ 1 Followingtrial, the jury returne d a g ener al ver dict in favor ofTodd Smart, who was injured while r iding his bicycle on a bicycle path on a city

street that wa s in the proce ss of being
resur fac ed by

the City of Chicag o (City). The City claims that a ne w trial is war rante d beca

use the trial cour

t errone ously

ref used to (1) submit a spec ial interrog atory and (2) tender

its proffer ed pre mises liabilit y

issues instruction to the jury . On appe al, the City claims that its special interrog atory

was in prope r for

m, asked a

single , direc t question that was not prejudicia l to Smart, and tested the jur

y ' s g ener al ver dict. The City also claims that its proffe red pr emises liability issues instruction should have bee n tender ed to the jury beca use: (1) Smart' s claims relate to the street' s condition; (2) the City was not eng ag ing in a

ny activity on the day

of Smart' s acc ident; and (3) it does not operate a business. F or the re asons stated be low, we a ffirm. ¶ 2 BA CKGROUND ¶ 3 Smart was injured on July 1, 2007, while ridingon a bicycle path near the intersec tion of north Marc ey

Street and w est Cortland Street in Chicag o, I llinois . At the time of the a ccide nt,1-12-0901

Smart, an avid amateur athlete, was r iding a triathlon road bicy

cle, whic h he had r idden previously

thousands of times. He r ode his bicycle e astbound on the south side of Cortland throug h the intersec tion of Cortland and Mar cey . He ha d trave led on this same path lea ding to the intersec tion hundreds of times prior to the a ccide nt and neve r saw the intersec tion in the condition it was in on J uly 1, 2007. ¶ 4 A portion of the stre et leadingto the intersec tion is designate d as a bic y cle r oute, which is appar ent by

the silhouette of a bic y cle pa inted on the pave ment betwee n two solid white lines. Signs on stree t posts marked with the words " L akef ront Tra il" ar e loca

ted along the path lea ding to the acc ident intersec tion, which also desig nate the stre et as a bicycle path. Vehicle tr aff ic is located on both sides of

the bicycle pa

th that leads to the interse ction. The bicycle path becomes a shar ed lane with vehicle tra ffic just past the inter section. ¶ 5 On the morningof the a ccide nt, Smart was ridinghis bicy cle on the path to go home a fter playing te nnis with a friend. H e wa s wea ringa helmet with a f

lashinglight on the ba ck, a yellow ref lective bicycle windbr eake r and spe cial shoes that c lip onto the bicy cle' s pedals. ¶ 6 As Smart approa ched the intersec tion, he noticed that the stre et' s surfac e cha ng ed fr om a smooth to a rug g ed texture as a r esult of a r esurf acing projec t. There was a

lip at the edg e of the
resur fac ing a

rea wher e the r emoval of the top lay er of asphalt ca

used a dr op off. Smart wa s
conce rned a

bout the rug g ed, dee p g roves of the stree t's sur fac e bec ause it cr eate d an inconsistency

in the paveme nt making it diffic ult to keep a bicycle stable

. ¶ 7 Upon noticingthe condition of the interse ction, Smart slowed his speed f rom 12 to 14 miles per hour to 6 to 10 miles per hour . Utility cover s and, in particula

r, Commonwealth Edison (Com Ed) vault cove rs, which a re nor mally flush with the paveme nt, were protrudingabove the 21-12-0901

street' s surfac e. As Smart appr oache d one of the square Com Ed covers, he steere d left to g o around it at whic h point the front tire of his bicycle lodg ed in the roa dway . The a brupt stop of Smart' s bicycle pr opelled him over the handleba rs and he landed on his left shoulder approximately

six fee t away
. ¶ 8 After

the fa ll, Sm art g ot up, retrieve d his bicy cle, a nd walked to the me dian in the stree t so he would not be in the wa y of vehic le traf

fic. As Smart wa s trying to r emove his jac ket, a f ire truck that wa s en route to g et fue l pulled over to assist him. The fire men ca lled an ambulanc e, which later

transporte d Smart to the hospital. ¶ 9 As a re sult of the fall, Smart' s left shoulder wa s fra cture d in multi ple place s and the humerus bone w as dislocated a nd rotated f

rom the socke t. Smart had shoulder surg ery on J uly 4, 2007, and a se cond surg ery about a year

later. The City

does not raise any

issue on appea l reg ardingthe nature and extent of Smart' s injuries or dispute that they are perma

nent and disabling. ¶ 10 A wee k afte r his acc ident, Smart and his wife took photog raphs of the stree t at the intersec tion. The condition of the stree t that cause d the front of Smart' s bicycle to bec ome lodge d was a

"g ash" or shallow tre nch to the side of the Com Ed vault that was approximately 2 inches de ep, 5 inche s long a nd 14 inches wide . The g ash or sha llow trench w as not visible from any distance a

nd was visible to Smart only as he stood almost direc tly on top of it. As he trave led throug h the intersec tion of Cortland and Mar cey on J uly 1, 2007, the only

options S mart had for avoidingthe trenc h, had he se en it, wer e to vee r rig ht and hit the raised Com Ed vault or
veer left into a lane of vehic ular tra ffic.
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¶ 11 Street re surfa cingrequire s g rinding , which is also re fer red to a s mill ing, a

proce ss that
remove s the exist ing stre et surfa ce. G rindingor milling is done in stag es. A lar g e g rinder
remove s the bulk of the existi ngstreet surf ace to a depth of 1.5 inc hes and a swee per at the rea

r of the grinder r etrieve s remainingmilled asphalt piece s. Once the surfa ce ha s been milled, a small gr inder pe rfor

ms trim work, which would include c hipping the a sphalt around a structure , such as se wer

or utility cover s. Small grinding , if perf ormed prope rly , should leave a n incline around r aised struc tures in the stree t so that the transition from the lower milled surfac e to the raised struc ture is not so abrupt . ¶ 12 In the City

of Chicag o, resur fac ing pr ojects ar e per formed in pha ses. The la rg e g rinding work is done f

irst. This init ial work is per formed a nd clea ned up in appr ox imately

a we ek. Small grindingwork follows. The street is then re surfa ced. T his process ty pically takes a bout a month. The pha sed work is planne d for the e fficie nt use of City personne l and equipment. Effic iency

considerations aside, the proc ess of re surfa cinga stree t can be completed in a da y or two. ¶ 13 On J uly

1, 2007, both larg e and sma ll gr inding ha d been c ompleted at the Cortland a nd Marc ey intersec tion. L arg e g rindingwas c ompleted on J une 20; small g rindingwas c ompleted on J une 25. The small grinding lef t no transition between the remove d street surf ace and the square Com Ed vaults. The shallow trenc h that cause d Smart' s front whe el to lodge was c reated by a small g rinder be ing le ft on and standingin one place . The grindingat the interse ction was perf ormed in a br idge deck pa ttern that looked like a

diamond with pronounce d straig ht lines. The bridg e dec k pattern is used to incr ease asphalt adhe sion and to achie ve a f lat surfa ce f

or
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purposes of a dding a

layer of asphalt. No other

work wa s done at the inter section until J uly 10, 2007, when it was r esurf

ace d. ¶ 14 On Dec ember

18, 2007, Smart filed a one -count ne g lige nce c omplaint ag ainst the City

. The c omplaint asserted that the City owned, ope rate d, maintained and c ontrolled the south side of Cortland whe re he was ridinghis bicy cle. Smart a lleg ed that the City failed to maintain its proper ty in a re asonably

safe condition. The City answe red the complaint and asse rted multiple aff irmative def

enses unde r the L ocal Gove rnmental a nd Gover nmental Employ ees Tor

t Immunity Act (A ct) (745 I L CS 10/ 2-201, 3-102, 3-104 (West 2006)) c laiming that: (1) it maintained its proper ty in a re asonably

safe condition at all times and did not have a ctual or c onstructive notice of any alleg ed def

ect of its property ; (2) it had no duty to provide wa

rning s or bar

rica des; and (3) its routing of tra ffic a

nd place ment of any

barr icade s involved the deter mination of policy

and exercise of

discretion. The City

also asser

ted that Smart was c omparatively neg lige nt. The City filed a motion in limine to bar testimony , argument and evide nce r elatingto the City ' s alleg ed failure to provide wa

rning s or bar

rica des, which the trial court grante d. ¶ 15 The City

also filed a motion for summar y judgme nt on November

9, 2010, asser

ting that it owed no duty

to protect Smart fr om the street' s open and obvious condition. The tria l court denied the City ' s motion on J anuar y 12, 2011. The c ase pr ocee ded to a jury trial. ¶ 16 Eug ene Paul Holland, a consulting e ng ineer

arc hitect, testified as a

n expert on Smart's behalf . Holland has wor

ked on proje cts in the City since 1964, many

of them involving the construction of stre ets. He is fa miliar with industry

standards f

or re surfa cingroadw ay s. ¶ 17 Wit h respe ct to the intersec tion where Smart' s acc ident occur red, H olland descr ibed the
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transition betwee n the stree t's milled surfa ce a nd the square utilit y

cover located on the bicycle path as a n abrupt c hang e. Holland opined that industry standards r equire d transition grinding betwee n the top of the squar e utility cover and the stre et' s surfac e to cr eate a smooth transition betwee n the two ar eas. F ine g rindingshould have be en per formed to c reate an incline be tween the utility cover and the e x posed aspha lt. ¶ 18 In Holland' s view, the bridg e dec k pattern that cre ated grooves in the stre et that went in multipl e dire ctions also cre ated a n unsafe condition. Holland believed tha t street g rindingin multipl e dire ctions should be avoided be cause it prevents bicyclists and vehicles f rom proce eding on the stree t in a normal manne r. It is not gene rally acc eptable to lea

ve a stre et in a condition wher e an une ven surf

ace is present a

nd its tex ture g oes in multipl e dire ctions, which re sults from g rindingand milling ac tiviti es. The unde rlying de fec ts in the street nea r the a ccide nt intersection in conjunction with the protrudingutilit y cover cre ated a n unevenne ss in the street' s surfac e posing a hazard to motorists and bicyclists. I n Holland' s opinion, had the City milled the street in one dire ction and smoothed its tex ture, the stre et' s hazardous condition would have been diminis hed. Holland' s opinion was that the ty pe of c onstruction work pe rfor med nea r the
acc ident intersec tion can ty pically be complete d in one day

beca use aspha lting norma lly immediately

follows g rindingor milling ac tiviti es. ¶ 19 The City

did not call an expert. The City ' s only witness was Philip S tephen, a City asphalt for eman who w as pre sent on J une 20, 2007, whe n the surfa ce of the stree t at the intersec tion was remove d. Stephen was not pre sent on J une 25 whe n fine grindingwas perf ormed. Stephen te stified that beca use of the size of the grindingmachines, it is not possible
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to gr ind an intersec tion in only one dire ction. Shown pictures of the scene , Stephen denied that there was a

ny g ash or sha llow trench, r efe rringto it ins tead a s "c oncre te shadows." Stephen also insisted that the pictures depic ted a stre et that was " pretty close to per fec tly

leveled." ¶ 20 Duringthe jury

instructions confer ence , Smart tendere d I llinois Pattern Jury Instruction, Civil , No. 120.02 (2006) ( here inafter , I PICivil (2006) No. 120.02) which is entitled " Duty To An Adult L awf

ully On The Prope rty

- Condition of Property ." I PICivil (2006) No. 120.02 r eads: " I t was the duty

of [the City ], as an owner of the prope rty

in question, to ex erc ise ordinar y car e to see that the proper

ty was re asonably

safe for the use of those lawf ully on the prope rty ." T he notes to this ins truction direc t that it shoul d be used if the injury was c aused by

the condition of proper ty owned or opera ted by a loca l public entity

. ¶ 21 Ba sed on Smart' s tender of I PICivil (2006) No. 120.02, the City contende d that the cour

t should use I llinois Pattern Jury Instructions, Civil , No. 120.08 (2006) ( here inafter , I PICivil (2006) No. 120.08) , the pre mises liabilit y issues and burde n of proof instruction. I PICivil (2006) No. 120.08 r equire s a plaintiff pursuinga pre mises liabilit y claim to prove that (1) ther e
was a condition on the proper

ty that prese nted an unr easona ble risk of ha

rm, (2) de fenda

nt knew or in the exercise of ordinar y car e should have known of both the c ondition and the risk, (3) defe ndant could not re asonably expect that people on the pr operty would not discover or

rea liz e the dang er, ( 4) def

endant wa s neg lige nt in specific wa y s, (5) plaintiff w as injured, a nd (6) defe ndant' s neg lige nce w as the proximate cause of plaintiff' s injury

. ¶ 22 Counsel for Smart objec ted to I PICivil (2006) No. 120.08, c iting the f ollowing Note s on Use to the instruction: " I f the a ction alleg es that an a ctivity on the pre mises cause d the injury or
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that the dang erous c ondition arose as pa rt of the de fenda

nt's business, use I PI20.01 and I PI B10.03." I llinois Pattern Jury Instruction, Civil , No. 20.01 (2006) ( here inafter , I PICivil (2006) No. 20.01) a

nd I llinois Pattern Jury

Instruction, Civil , No. B 10.03 (2006), in turn, a re instruc tions used in ordinar

y neg lige nce c ases. Smart' s counsel also noted tha t the Notes on Use to I PICivil (2006) No. 120.02 dic tate the use of neg lige nce instruc tions if a plaintiff is alleg ing that an activity of the prope rty

owner cause d the injury . Counsel contended that the City ' s activity in
resur fac ing the street a

nd leavingit in an unsafe c ondition prox imately cause d Smart' s injuries and, ther efor e, the pr emises liability instruction should not be give n. The City , howeve r, asse rted that the ca se wa s a pre mises liabilit y case beca

use Smart' s alleg ations and basis for rec overy
conce rned the street' s condition and he fa iled to observe a n open and obvious c ondition in t he street. The City

asser ted that it was not eng ag ing in a ny activity on the day

of the a ccide nt and that as a municipa lity , it was not operating a business. The trial c ourt agree d with Smart and ref used to g ive I PICivil (2006) No. 120.08. ¶ 23 Also duringthe jury instructions confer ence , the City submitt ed the f

ollowing spe cial interrog atory : "Was the c ontributory neg lige nce of

Todd Smart, if any , greater than 50% of the proxi mate ca

use of his injuries? " I

n response to the City ' s reque st for a spe cial interr og atory , the trial court state d that the interrog atory would not test the jury ' s g ener al ver dict and could mislead or conf use the jury . The trial c ourt ref used the City ' s special inter rog atory
. ¶ 24 Followingdeliberations, the jury returne d a g ener al ver dict in favor of Smart and aw arde d $1,917,119.67 in damag es. The City filed a posttrial motion assertingthat a new trial was
war rante d beca

use the trial c ourt err ed in: (1) r efusingits special interrog atory conce rning
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Smart' s contributory

neg lige nce; ( 2) tende ringtwo duty instructions; (3) ref

using its proff

ere d I PI Civil (2006) No. 120.08; a nd (4) makingnumerous, er roneous e videntiary

ruling s. The trial court de nied the City ' s posttrial moti on on Fe bruar y 29, 2012, and the City

timely appea led. ¶ 25 ANALYSI S ¶ 26 A. Special Interrog atory ¶ 27 As a pre liminary

matter, Smart cla ims that the Cit y has for feited r eview of

any err or relating to the tria l court' s ref usal of its special inter

rog atory beca use it failed to submit a revise d specia l interrog atory . Smart contends that the tria l court grante d the City the opportunity

to tender another interrog atory

prior to the jury ' s deliberations. ¶ 28 We do not believe that the City has for feited this claim of e rror . Review of a n err or is forf eited unless a pa

rty objects to the er

ror at trial and includes the e rror in a posttrial motion. Thorton v. Garcini , 237 I ll. 2d 100, 106 (2010), Ahmed v . Pickwick Place O wners' Ass'

n , 385 I ll. App. 3d 874, 888-89 (2008) . The tra nscript of the jury

instructions confer ence included in the
rec ord re veals that the City strong ly advocated use of its spec ial interrog atory and opposed the trial court' s ref

usal to submit t he interr og atory to the jury . The City

also included its claim of
err or in its postt rial motion for a ne w trial. ¶ 29 Contrary

to Smart's c ontention, the rec ord does not re flec t that the trial court e ncoura g ed the City to submita re vised specia l interrog atory . Rather, the c ourt conc luded that the interrog atory

would not test a g ener al ver dict and re fused to g ive it for this rea son. Although the City could have submitt ed a r evised interr og atory , its failure to do so does not pre clude r eview of this claimed err or.
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¶ 30 Turningto the merits, the City claims the trial cour

t erre d in refusingto submitits special interrog atory

to the jury

beca use the interr og atory

tested the jury' s verdict a nd was in prope r form. The City

contends that its specia l interrog atory tested the g ener al ver dict beca use it asked the jury whether Smart' s contributory

neg lige nce w as g reater than 50% of the proximate cause of his injuries. Bec ause the verdic t form re turned by the jury did not address Smart' s contributory neg lige nce, the City

claims that the spec ial interrog atory would have te sted that verdic t and an aff irmative answe r would have been inc onsistent with a ge nera l verdict in Smart' s favor

. ¶ 31 Section 2-1108 of the I llinois Code of Civil P roce dure g overns spe cial interr og atories a nd states: "Unless the nature of the c ase r equire s otherwise, the jury shall rende r a g ener al ver dict. The jury may be re quired by

the cour t, and must be requir ed on re quest of any party , to find specia lly

upon any materia l question or questions of fac t submit ted to the jury in writing . Special interr og atories sha ll be tender ed, objec ted to, ruled upon a nd submitt ed to the jury

as in the ca se of instructions. Submitt ing or ref using to submit a question of fac t to the jury

may be re viewed on a

ppeal, a s a rulingon a question of law . When the specia l finding of

fac t is inconsist ent with the g ener al ver dict, the forme r controls the latter a nd the cour

t may enter judgme nt acc ording ly ." 735 I L CS 5/ 2-1108 (West 2006). ¶ 32 A spec ial interrog atory is in proper for

m if "( 1) it relate s to an ultimate issue of fa ct upon which the r ights of the parties de pend, and ( 2) an a nswer r esponsive ther eto is inconsistent with some g ener al ver dict that might be r eturne d." Simmons v. Garc es , 198 I ll. 2d 541, 555 (2002). A specia l interrog atory ' s response is inconsistent with a g ener al ver dict only wher e it is "c lear ly

and
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absolutely

irrec oncilable with the g ener al ver dict." ( Interna l quotation marks omitted.) Id. at 555-56. The pur

pose of a specia l interrog atory

is not to i nstruct the jury , but to serve a s a che ck on the jury ' s deliberation and to enable the jury to determine one or more spe cific issues of ultimate fac t. Id. at 555; Santos v. Chicago Transit Authority , 198 I ll. App. 3d 866, 869 (1990). Additionally , a spec ial interrog atory : (1) should consist of a sing le direc t question; (2) should not be pre judicial, repe titive, mis leading , confusingor ambiguous; and (3) should use the same languag e or te rms as the tende red instruc tions. Simmons , 198 I ll. 2d at 563; Santos , 198 I ll. App. 3d at 870; Ewanic v. Pe

pper Construction Co., 305 I ll. App. 3d 564, 568 (1999) . We reviewa trial court' s ruling r eg ardinga re quest for a specia l interrog atory de novo. G arcia v. Se neca Nursing Home , 2011 I LApp (1st) 103085, ¶ 35. ¶ 33 We first consider whether the spec ial interrog atory

would have te sted the g ener al ver dict. A spec ial interrog atory

is not in proper for

m unless it would be inconsistent with som e g ener al verdic t that the jury

may return on the issues in the case

. Van Hattem v . K mart Corp. , 308 I ll. App. 3d 121, 132 (1999). I n this case, the spe cial interr og atory asked: " Was the contributory neg lige nce of

Todd Smart, if any , g rea

ter than 50% of the proximate cause of his injuries? " Be cause the jury

returne d verdic t form A, we limitour consider ation to that verdict for m only in deter mining whe ther the spe cial interr og atory proper ly tested the g ener al ver dict. ¶ 34 Ver dict form A state s: "We, the jury , find for the plaintiff, Todd Smart, and a g ainst defe ndant, The City

of Chicag o." See I llinois Pattern Jury Instructions, Civil , No. B 45.01A (2006). We agree with the City that an af firmative a

nswer to the spe cial interr og atory would clea rly be inconsistent with this verdict form f inding in fa

vor of Smart. More specific ally , an 111-12-0901

aff irmative answe r to the spec ial interrog atory would establish that Smart was g reater than 50% contributorily

neg lige nt in causinghis injuries, which would direc tly contra dict the jury

returning a g ener al ver dict in Smart's f avor. Conseque ntly , the City ' s special inter rog atory would have sufficie ntly

tested the jury ' s verdict in fa vor of Smart. ¶ 35 We nextaddre ss whether the City ' s special inter

rog atory asked a single , direc t question. Smart claims that the interrog atory consisted of multiple questions: (1) whethe r Smart was contributorily

neg lige nt; (2) if so, whethe r Smart' s neg lige nce pr ox imately cause his injuries; and (3) if so, whe ther Smart' s contributory neg lige nce e x cee d 50% of the total ne g lige nce contributingto his inj uries. Smart conte nds that these multiple questions rende r the interrog atory impermissibly

compound. ¶ 36 The City

relies on Garcia v. Se neca Nursing Home , 2011 I LApp (1st) 103085, in support of its argument that the spec ial interrog atory was in prope r for

m. The spec ial interrog atory this court found pr oper in Garcia rea d: " ' Prior to Roberto Gar cia' s death, wa s it reasona bly fore seea ble to [defendant] that he would commit suicide or a ct in a self- destructive ma nner on or befor e Apr il 21, 2004? ' " Id. ¶ 10. The plaintiff in Garcia claimed that the inter rog atory was not in proper f

orm bec ause the jury

was re quired to make the followingfour f actua l findings: whether "( 1) Roberto c ommitt ed suicide, a nd (2) if so, wa s it foresee able, or (3) whe ther Rober

to committed a self- destructive a ct, and ( 4) if so, wa s it foresee able? " Id. ¶ 51. This court disag ree d, findingthat the question was pr operly phrase d as a sing le question reg ardingthe fore seea bility of two alter

natives in the disjunctive and that a n aff irmative answe r to either alternative require d an af

firmative a

nswer to the e ntire interr og atory
. Id. Thus, this court

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conclude d that the spec ial interrog atory ' s construction wa s not impermissibl y compound. Id. ¶ 37 The spec ial interrog atory in Garcia is disti nguishable fr om the one propounde d by the City in this case. I

n Garcia , the interrog atory asked a single question reg ardingfore seea bility

. The issue wa s whether

the likelihood that Roberto would injure himself, whe ther by suicide or a self-de structive ac t, was for esee able by defe ndant. In contra st, the special inter rog atory in this
case , althoug h dece ptively brief, a sks whether Smart was contr ibutorily neg lige nt, and if so, whether his neg lige nce w as the proximate cause of his injuries and, if so, whe ther the ne g lige nce attributable to Smart was greater than 50% . We ag ree with Smart that the City ' s special interrog atory

is impermissibl y

compound bec ause it would have require d the jury to consider multipl e questions re lating to the c ause of Smart' s injuries. The for m of the spec ial interrog atory was in direc t contradic tion to the established rule that a specia l interrog atory

must be phrase d as a single , straig htforwa

rd question. Ahmed, 385 I ll. App. 3d at 889. ¶ 38 The spec ial interrog atory was a lso not in proper for m beca use its languag e wa s prejudicial to Smart. The openingphrase , "Was the c ontributory neg lige nce of

Todd Smart," pr esumes that the jury has found that Smart wa s contributorily neg lige nt without directly askingthe jury

to make that f

inding. Indeed, the City

could prope rly

have te ndere d an interr og atory that asked, "D o y ou find that Todd Smart was c ontributorily neg lige nt? " See Santos , 198 I ll. App. 3d at 868, 870 (prope r for

specia l interrog atories to ask " ' Was there c ontributory neg lige nce on the part of J ohn Santos imm ediately befor e and a

t the time of his injuries? ' " a nd " ' Was there c ontributory neg lige nce on the part of the plaintiff bef ore a nd at the time of the oc curr ence which wa s the sole proxi mate ca

use of his injuries? ' ")

. 131-12-0901

¶ 39 The City

contends that a

ny prejudicia l effe ct was c ured by its insertion of the depende nt clause "if any " immediate ly

followingthe introductory phrase . The City

relies on Johnson v. Owens-Corning Fiberglass Corp. , 313 I ll. App. 3d 230 (2000), to establish that use of a depende nt clause in a

specia l interrog atory

is permissible. The City ' s relianc e on Johnson is misplaced. The specia l interrog atory in Johnson stated: " ' Do you find that Charles Johnson's lung c ance r wa s cause d, in whole or in par t, by exposure to fibers fr om A.P. Gree n [AP G] asbestos produc ts used at Key stone? ' " Id. at 236. Afte r consider ing the specia l interrog atory alongwith the other instructions, this court conc luded that the spec ial interrog atory was in prope r form. Id. at 237. This court re asoned that a rational jury would understand that expos ure to APG' s product nee d not be the sole c ause of J ohnson' s lung c ance r to answe r the interr og atory in the af firmative. Id. The opinion, howeve r, did not specific ally analy ze whether

the use of a depende nt clause in a

specia l interrog atory

automatically

rende rs the interr og atory proper in form or explicitl y

addre ss whether

the interrog atory

was impermissibly

compound. Thus, Johnson is not disposit ive of the issue he re. ¶ 40 Although the depende nt clause, " if any ," did a llow for the possibility that Smart was not contributorily

neg lige nt, the addition of that clause did not eliminate the prejudicia l effe ct of the introductory

clause , which pre sumes that finding . On this point, S mart re lies on Lundquist v. Nickels , 238 I ll. App. 3d 410 (1992), and w e find that c ase instruc tive. The spec ial interrog atory inLundquist

asked: " ' Was the plaintiff Marg are t Lundquist's neg lige nce the sole proxim ate
cause of her

injuries? ' " Id. at 434. This court found that interrog atory misleadingand conc luded that the trial cour

t properly ref used to g ive it. Id. This court re asoned tha t the specia l
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interrog atory

inappropriately assumed that the jury found the plaintiff c omparatively neg lige nt rathe r than asking the jury if it found the plaintiff compa ratively neg lige nt. Id. at 435. Simi larly , here , the City ' s special inter rog atory assumed that Smart wa s contributorily neg lige nt and did not initially ask the jury

to independently

deter mine that fac t. Inclusion of the depe ndent clause "if any " did not temper

the pre judicial impact of the introduc tory languag e that pre supposed a findingthe jury

was not aske d to make. ¶ 41 In sum, the City ' s special inter rog atory asked a question that was impermissibly compound and its introductory languag e wa s prejudicial to Smart. F or these r easons, we conclude that the trial cour t did not err in re fusingto submitthe City ' s special inter rog atory to the jury and a ne w trial is not warr anted. ¶ 42 B. Jury Instructions ¶ 43 Smart ag ain claims that the City has for feited r eview of

its claim that the trial court
err oneously

reje cted its proff

ere d premises liability

jury instruction. Smart contends that the City did not object to I PICivil (2006) No. 120.02, the comments to which indicate that it should be
acc ompanied by

g ener al neg lige nce instruc tions. S mart, howe ver, a cknowledg es that the City objected to the tr ial court' s ref usal of its tendere d I PICivil (2006) No. 120.08. T he re cord r evea ls an extensive colloquy

duringthe jury

instructions confer ence reg ardingthe appr opriate issues instruction. The City

opposed the trial c ourt' s interpre tation of the re levant notes on use to I PI Civil (2006) No. 120.02 a nd I PICivil (2006) No. 120.08 a nd claimed that a

premises liability issues instruction should have bee n g iven bec ause Smart' s alleg ations relate d to the condition of the stree t and not to any

"a ctivity " or

"busine ss" c onducted ther eon. B eca use the City

raised the
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trial court' s alleg ed er

ror in re fusingto tender its proff ere d instruction and included that point in its postt rial motion, it has preser ved the issue f

or appe al. Thorton , 237 I ll. 2d at 106. ¶ 44 Be fore addre ssing the me rits of the City ' s claim, we note that the par ties disag ree on the applicable standard of

revie w. The City

asser ts that de novo revie w applies be cause the trial court tende red the wrongjury instruction, which re quires this court to addr ess a leg al question. The City predic ates its argument that the de novo standard of revie w applies on its contention that, as a matter of law , Smart' s claim was a premises liability

claim and, ther efor e, the tria l court was oblig ated to g ive the pre mises liabilit y issues and burde n of proof instruction. ¶ 45 As we discuss be low, Smart pursued a neg lige nce c laim ag ainst the City and he w as entitled to elect the le g al theory upon which to proc eed. We a g ree with Smart that the City ' s claim is that the trial cour t erre d in refusingto tender its proff ere d jury instruction. Be cause it is within the trial court' s discretion to g ive or de ny a jury instruction, we employ

an abuse of discretion standa

rd of r eview. Dillon v. Evanston Hospital , 199 I ll. 2d 483, 505 (2002). An abuse of discretion standa

rd re quires this court to deter mine whether

the instructions, taken a s a whole, ar e suff

iciently clea r so as not to mislead they jury and whe ther they

fairly and cor rec tly state the law

. Id. 1 ¶ 46 The City

asser ts that the trial court e rre d in instructing the jur y with the burden of

proof instruction for use in g ener al neg lige nce c ases ( I PICivil (2006) No. 20.01) instead of the premises liability

issues and burde n of proof instruction (I PICivil (2006) No. 120.08) . The City claims that tender ing the g ener al neg lige nce instruc tion was prejudicia l beca use it relieve d Smart We note, howeve r, that no matter what standar d of re view is applied, we would find no 1 err or in the trial cour

t's r efusa l of I PICivil (2006) No. 120.08. 161-12-0901

of the burde n of provingall of the e lements nec essar y to impose liabili ty

on a landowne r for

an
unrea sonably

dang erous c ondition on the landowner' s proper ty . As noted above , I PICivil (2006) No. 120.08 re quires a pr emises liability plaintiff to prove, a

mong othe r thing s, that the landowne r knew or in the exercise of

ordinary car e should have known of both the c ondition and the risk the condition posed to others lawf ully on the prope rty . The City also claims that the pre mises liability instruction should have bee n tender ed bec ause Smart' s claim for r ecove ry was ba sed on the public stree t's unsa fe c ondition and not on any activity that the City

was c onductingat the time Smart was injured. F inally , the City contends that the jury

was likely

confuse d by

the trial court' s tendering

of two duty

instructions, which included the City ' s duty as the owne r of land (I PICivil (2006) No. 120.02) and its duty under or dinary

neg lige nce pr inciples (I llinois Pattern J ury Instruction, Civil , No. 10.04 (2006))

. ¶ 47 The funda

mental pre mise underlying the City ' s argument on this iss ue is that Smart pursued " a standa

rd pre mises liabilit y

case ag ainst the City ." Clea rly he did not. Smart' s onecount complaint sounded in neg lige nce, not pr emises liability . Thus, in arguing that the trial court e rre d in refusingthe issues and burde n of proof instruction applicable in pr emises liability
case s, the City

simply misses the mark. ¶ 48 As we ha

ve re cited above , the trial cour t instructed the jury , pursuant to I PICivil (2006) No. 120.02, that the City , as a pr operty owner , was unde r a duty to exercise ordina

ry car e to see that its property

was re asonably

safe for use by

those lawfully

on the prope rty . This is indisputably

an ac curate statement of the law. See W ashington v. City of C

hicago , 188 I ll. 2d 235, 239 (1999); W

arning v. City of Joliet, 2012 I LApp (3d) 110309, ¶ 27; Jefferson v . City of
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Chicago, 269 I ll. App. 3d 672, 677 (1995). Howeve r, the use of this inst ruction did not transfor m this case into a pre mises liabilit y case . Owner s of prope rty , whether sued for neg lige nce or

premises liability , owe the duty to those lawfully

on the prope rty

articulated in I PI Civil (2006) No. 120.02. Conseque ntly , the trial cour t's de cision to give I PICivil (2006) No. 120.02 did not automatically entitle the City

to require that I PICivil (2006) No. 120.08 be g iven
as we ll. ¶ 49 As also noted pre viously , the comments to I PICivil (2006) No. 120.02 dir ect that if the plaintiff is alleg ing that an ac tivity conducte d on the prope rty by the landowne r ca

used plaintiff' s injury , the re levant neg lige nce instruc tions should also be used. The Note s on Use to I PICivil (2006) No. 120.08 likew ise direc t the use of ne g lige nce instruc tions: "U se this instruction for pre mises liabilit y case s, including those in whic h the plaintiff claims that he/she wa s distracted a nd failed to obser

ve an ope n and obvious defe ct on the proper ty . *** If the action alleges that an activity on the pre mises cause d the injury or that the dang erous c ondition arose as pa rt of the de fenda

nt's business, use IPI

20.01 and IPI B10.03 ." ( Emphasis added.) I PICivil (2006) No. 120.08 , Notes on Use. ¶ 50 The City

contends that be cause it was not eng ag ed in any "a ctivity " on the date Smart wa s injured, it cannot be said that any activity conducte d on the pre mises prox imately cause d Smart' s injuries and, ther efor e, Smart and the trial court misrea d I PICivil (2006) No. 120.02' s direction to use neg lige nce instruc tions. W e disagree . The City ' s activity in resurf acingthe intersec tion, a projec t that was ong oing a s of J uly 1, 2007, and which a ltered the otherwise sa fe bic y cle path, resulted in ra ised structure s in the roadwa y and a sha llow trench or

g ash not rea dily

visible. The
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alteration of the bicycle pa th as a re sult of these ac tiviti es wa s clea rly the proxim ate c ause of Smart' s injuries. ¶ 51 Moore v . Chicago Park District , 2012 I L112788, heavily relied upon by

the City in
connec tion with it s premises liability argument, is not on point . In Moore, the plaintiff brought a neg lige nce c laim assertingthat the par k district's a ctivities in neg lige ntly and ca rele ssly shoveling and plowingsnow into mounds on it s parkinglot and walkwa y cre ated a n unnatura l condition for pedestria ns to walk upon or step ove r. Id. ¶ 4. The Moorecourt a ddresse d the scope of the Chicag o park district' s immuni ty under se ction 3-106 of the A ct (745 I L CS 10/ 3-106 (West 2008)). Moore , 2012 I L112788 , ¶ 9. The c ertified que stion presented in Moorewas whe ther a n
acc umulation of snow and ice on park district prope rty cause d by

plowing a

nd shoveling activities was a

"c ondition" of the pr operty within the meaningof sec tion 3-106, which immuniz es public bodies fr om liabilit y for injuries whe re the liability is based on " the exist ence of a c ondition of any

public proper

ty " use d for r ecr eational pur poses, unless the public body is guilty of willful and wa

nton conduct proximately causingthe injury

. Id. ¶

¶ 1, 9. In Moore , our supreme c ourt ultimately

conclude d that the exist ence of snow and ic e on par k district
rec reational property

was not an " activity " c onducted on de fenda nt's pr operty , but rather

a "c ondition of the proper

ty ." Id. ¶ 16. Thus, the c ourt found that the pa rk district was immune under the Act. ¶ 52 In this case, a

ny arg uments raised by

the City under the Act we re r esolved prior to trial and no issues re g ardingthe City ' s immuni ty from suit are raised on a

ppeal. F urthermor e, the liability of the City

here is not based on sec tion 3-106 of the Ac t, but rather on the g ener al duty
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imposed on a public entity under se ction 3-102 (a ) " to maintain its property in a re asonably

safe condition for the use in the exercise of ordinary car e of pe ople whom the entity intended and permitted to use the pr operty ." 745 I L CS 10/ 3-102(a ) (West 2006). Moore ' s construction of the word " condition" a s used in section 3-106 of the Act ha s no releva

nce in this ca se whe re liability ag ainst the City

is based, eve n under the City ' s view, on common law pr inciples reg arding a landowner ' s duty

toward those la

wfully on the land. This ca se also does not involve injuries sustained on prope rty

used for rec reational purposes and, the ref ore, the supreme c ourt' s rea soning reg ardingwhat ac tiviti es by a public body

will remove a

case from the sc ope of immunity aff orded unde r sec tion 3-106 of the Ac t for such c laims does not apply

. ¶ 53 B ut even if Moore ' s rea soning w as applied in the c ontextof this case , the re sult would be the same. In Moore , a par k district employ ee shove led or plowe d ice a nd snow that had fa llen on
rec reational property

. Moore , 2012 I L112788 , ¶ 3. In that context, the supreme cour t rea soned that snow was a

natura lly occur ringsubstance when it fell on the prope rty and did not become an "a ctivity " when it was shovele d or plowed but, ra ther, re mained a c ondition of the proper ty
. Id. ¶ 16. Her e, in contra st, the City ' s activities in removingthe surfa ce of the stree t, mill ing the street in multi ple direc tions, leavingexposed structures a bove the milled surfa ce, a nd cre atinga tre nch into which Smart' s front whe el lodg ed ca nnot fairly

be cha rac terized as any

thing other

than "a ctivities." Thr oug h these a ctivities, the City altere d the safe condition of the stree t and rende red it unsaf

e for persons, includingSmart, entitled to use it. ¶ 54 Releva

nt authority

involving ca ses ag ainst landowner s for injuries sustained on pr operty also does not support the City ' s contention that a landowner must be c ontemporane ously
201-12-0901

perf ormingsome ac tivity

at the time a plaintiff is injured in or der f or neg lige nce r ather

than premises liability

principles to apply . See Ree d v. W al-Mart Stores , Inc. , 298 I ll. App. 3d 712, 717-18 (1998) (plaintiff e ntitled to ordinary neg lige nce instruc tion where plaintiff' s complaint alleg ed that the ne g lige nce of defe ndant' s employ ees in plac ing a board w ith rusty

nails protrudingin a pathwa

y used by customers c aused the injuries she sustained whe n she stepped on the boar d.) In fac t, Ree d

rec og nizes that under circ umstances whe re a landowner ' s conduct in
cre atingan unsaf

e condition pre cede s the plaintiff' s injury , a plaintiff may elec t to pursue a neg lige nce c laim, a pre mises liabilit y claim, or both. Id. at 717. " [P ]l aintiffs ar e master s of their complaint and ar e entitled to proc eed unde r whiche ver the ory they decide , so long a s the evidenc e supports such a

theory ." Id. at 718. See also W ind v. Hy- VeeFood Stores, Inc. , 272 I ll. App. 3d 149, 156 (1995) (plaintiff pe rmitted to pursue neg lige nce c laim when she trippe d over the cur led edg e of a

mat place d ear lier by

defe ndant' s employ ee at the front door of defe ndant' s store; plaintiff cla imed it was standar d prac tice for the edg es of mats to be ta ped down a

nd that defe ndant was ne g lige nt in failing to tape the mat that ca used her to trip). There fore , notwithstanding the " leg ions of case s" the City claims apply

premises liability

principles to injuries arisingfrom the c ondition of property , the City could not require Smart to pursue a theory of liability

he chose not to plead. ¶ 55 Indeed, unde r the c ircumstance s of this case, it would have been e rror to give I PICivil (2006) No. 120.08, which re quired Smart to af firmatively

prove, a s an ele ment of a pr emises liability claim, that the City

had notice of

the condition that posed an unr easona ble risk of ha

rm. Her e it is uncontrover

ted that the City ' s conduct c reated the hazar d that cause d Smart' s injuries.
211-12-0901

Given that fa ct, Smart was not re quired to show that the City had notice of

the hazard. See I llinois Pattern Jury

Instructions, Civil , No. 120.00, Introduction (2006) ( "Ca se law de parts fr om the ' notice' require ment *** when the pla intiff shows, throug h direc t or circ umstantial evidence , that the dang erous c ondition arose fr om the defe ndant' s acts ***." ). 2 ¶ 56 We also rejec t the City ' s claim that the fa ilure to g ive I PICivil (2006) No. 120.08 w as prejudicia l beca

use that instruction would have require d Smart to prove that the ha zardous conditions in the street we re not ope n and obvious. First, I PICivil (2006) No. 120.08 imposes no such burde n on a pre mises liabilit y plaintiff. I PICivil (2006) No. 120.08 r equire s the plaintiff in a pre mises liabilit y

case to prove that the c ondition on the property prese nted " an unre asonable risk of har

m." A c laim that the unrea sonably dang erous c ondition of property proved by

the plaintiff was ope n and obvious is a def ense to a premises liability

claim. See Choate v. Indiana Harbor Belt R.R. Co. , 2012 I L112948, ¶ 34 (a nd case s cited there in) (re cog nizi ngthat the "known or obvious risk" pr inciple neg ates the e x istence of a duty owed to plaintiff a

nd is a matter re lating to plaintiff' s contributory neg lige nce or

the par ties' compar ative fa

ult). Second, as the propone nt of that defe nse, the City would have bor

ne the bur den to plead a

nd prove it. In the event that Smart e lected to pur sue a pr emises liability claim, he would not have been r equire d to prove a neg ative, i.e. , that the hazardous c onditions of the street we re not open and obvious. Finally , under the circ umstances of this case, the City

does not explain how a jury could have found that the ha zardous conditions of the intersec tion were open and obvious whe n the City ' s Although Smar

t and the trial c ourt also re lied upon the theory that the City

was in the 2 "busine ss" of

resur fac ing a

street, whic h is another c ircumstance that war rants the g iving of ordinary neg lige nce instruc tions under the comments to I PICivil (2006) No. 120.08, w e nee d not rea ch that issue g iven our c onclusions reg arding the City ' s activity

at the site. 221-12-0901

only witness testified that the stree t was per fec tly level and tha

t the g ash or sha llow trench w as
mere ly a " concr ete sha dow." ¶ 57 In sum, the City

was in the proc ess of re surfa cingthe intersec tion where the ac cident
occur red, a projec t that was ong oing on the day of the a ccide nt, and it was direc tly responsible for c ompleting a

nd overse eingthe re surfa cingactivities. The City ' s resurf acingactivities cre ated the unsafe conditions that caused Smar t's injuries. The trial court pr operly adher ed to the guidance dictated by

the Notes on Use for I PICivil (2006) No. 120.02 a nd I PICivil (2006) No. 120.08 and did not err

in tenderingduty

and burde n of proof

instructions applicable to g ener al neg lige nce c ases. More over, Smart c hose to pursue a neg lige nce c laim ag ainst the City and the jury was prope rly

instructed base d on that cause of ac tion. Bec ause the trial court did not er r in ref using to tende r the City ' s proffe red pr emises liability instruction, a new tr ial is not warra nted. 3 ¶ 58 CONCLUSI ON ¶ 59 Acc ording ly , we a ffirm the judg ment of the trial c ourt. ¶ 60 Affir

med.

We need not addr ess the City ' s final contention re g ardingevidenc e admissible on re trial 3 g iven our a ffirma

nce of the jury ' s verdict. 23