Opinion
No. 1-19-1639
05-10-2021
PAULA COVARRUBIAS, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
Appeal from the Circuit Court of Cook County No. 16 L 4581 The Honorable Daniel J. Lynch Judge Presiding. JUSTICE PIERCE delivered the judgment of the court.
Presiding Justice Walker and Justice Hyman concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court is affirmed. The circuit court did not err by denying plaintiff's posttrial motion for judgment n.o.v., and plaintiff forfeited her argument that she was entitled to a new trial on the basis that the jury's verdict was against the manifest weight of the evidence. The circuit court did not abuse its discretion by denying plaintiff's motion for a new trial based on alleged errors in the exclusion of witnesses where plaintiff failed to make contemporaneous offers of proof at trial and the circuit court's exclusion of those witnesses was within its discretion. ¶ 2 Plaintiff, Paula Covarrubias, appeals from a jury verdict in favor of defendant, the City of Chicago, on plaintiff's premises liability claim, and from the circuit court's denial of her posttrial motion for judgment n.o.v. or for a new trial. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Plaintiff's complaint made the following allegations. In May 2016, plaintiff, a 16-year-old high school student, was walking on the sidewalk on the west side of the 5200 block of South Lake Park Avenue in Chicago. Defendant owned, operated, managed, and maintained the sidewalk. A light pole near the intersection of 52nd Street and South Lake Park Avenue was not properly secured to ground. The light pole broke at its base and fell on plaintiff, injuring her legs. Defendant had actual or constructive knowledge of the unsteady light pole prior to the incident, and had a duty to exercise reasonable care and to maintain the light pole in a reasonably safe condition. Defendant failed to maintain, repair, remedy, replace, or warn pedestrians of the unstable light pole. Count I asserted a claim for negligence and count II asserted a claim for medical expenses incurred by plaintiff's father because of the incident. Defendant answered the complaint and asserted various affirmative defenses. The parties engaged in discovery, including numerous depositions, and the matter proceeded to a jury trial. ¶ 5 Prior to trial, the parties filed and argued various motions in limine. Relevant to this appeal, defendant sought to bar or limit the testimony of defendant's employees, Vicki Gibbons, Tom Jachim, John Sobieck, Kurt Steigerwald, Sean Doyle, and Stanley Fipps, all of whom plaintiff intended to call as adverse witnesses and who might testify regarding repair and maintenance of light poles. Defendant argued that Gibbons, Jachim, and Sobieck should be barred as witnesses because at no time prior to the incident were they in the vicinity of the pole that fell, and they had never worked on the pole that fell or any other pole in the vicinity; the only involvement they had was with work performed after the incident. Defendant also argued that Steigerwald, Doyle, and Fipps should be barred because they had only performed electrical repairs on light poles in the surrounding area, which was not relevant to the issue of whether defendant had notice of the condition of the pole that injured plaintiff. The circuit court heard oral argument on the motion. Plaintiff argued that defendant's employees had been trained to inspect other streetlights in an area when responding to a repair call and there had been numerous repairs calls for streetlights in the vicinity in the years preceding the incident. She further argued that defendant's employees testified that, if they had seen the hole in the light pole that struck plaintiff, they would have reported it. The circuit court heard argument regarding five streetlight repair calls between 2010 and 2016 for the same block on which the incident occurred. Plaintiff's appellate brief does not direct our attention to the circuit court's specific rulings on the witnesses that defendant sought to exclude. The circuit court, however, outlined what evidence might be relevant. The circuit court found that evidence about calls to repair poles for corrosion and degradation on the same side of the street as the one that fell would be relevant, since defendant did not have any formal light pole inspection policy and defendant had argued that it had discretionary immunity such that defendant had no duty to inspect its property and had discretion as to how to allocate its funds. To the extent that defendant had voluntarily assumed a duty to inspect its light poles, the only unit that did so was the "small gangs" unit of defendant's Division of Electrical Operations. With these parameters in mind, the matter then proceeded to trial. ¶ 6 At trial, plaintiff called Scott Leopold, a structural engineer, and elicited the following testimony. He reviewed various materials, photographs of both the pole and the location of the pole, and the pole itself. The pole was 29 ½ feet tall and weighed approximately 430lbs. It was anchored to the ground by four steel anchor bolts embedded in concrete and protruding up; a baseplate then secured the pole to the ground, which was held in place by washers and nuts on each bolt. Another piece of steel was welded to secure the top of the baseplate, and steel covers called "leaves" were placed over each anchor-bolt assembly. The bottom end of the pole, the baseplate, and the anchor-bolt assemblies of the pole that fell on plaintiff were rusted and deteriorated, and photographs taken by defendant following the pole collapse showed that three of the anchor bolts were completely rusted away. There was also a 3" x 1 ¼" hole through the entire thickness of the steel pole wall. While there was no evidence as to when the pole had been installed, the rust hole had existed since at least 2011 based on an examination of an image obtained from Google Earth. Leopold opined that (1) the corrosion was the result of decades of periodic exposure to road salt and deicing agents; (2) the pole collapsed under a light wind; (3) the pole was being held in place by only one anchor bolt; and (4) if the other three anchor bolts and nuts had been intact, the pole would not have collapsed in May 2016. ¶ 7 Plaintiff elicited the following testimony from Vicki Gibbons, who was called as an adverse witness. She was hired by defendant in 1991 as a lineman electrician and became a foreman around 2002. As foreman, she worked with a "small gangs" crew on a truck comprising a foreman, a driver, a laborer, and two linemen. She oversaw the truck and would get job tickets in the morning that the crew would complete during the day. If a pole were knocked down, the crew would repair the foundation, frame up the pole, and put the equipment back up. The crew might be called to the scene of leaning poles or corroded poles. If there were a hole in a pole, they would replace the pole. When attending to the job identified on a ticket, the crew attends the specified pole first. They would then do a visual inspection of other nearby poles based on the reason they attended to the specified pole. If the specified pole were leaning for a particular reason such as corrosion, they would look to see whether other poles were leaning due to rust. They would walk the entire block to visually inspect the other poles and might do a more detailed inspection based on what they found. If there was rust on the bolts of the specified pole, they would knock the leaves off the anchor-bolt assemblies of the other poles to look for rust. However, if a crew were called to repair a pole and no corrosion was noted on the ticket, Gibbons would not necessarily expect a crew to discover corrosion on a different pole on the block. ¶ 8 Gibbons was asked about a 311 call on April 27, 2010, reporting a pole on the 5200 block of South Lake Park Avenue that was "leaning dangerously," and the job ticket from April 28, 2010, completed by a small gangs crew. The job ticket stated, "bolts bad," which did not necessarily mean rust or corrosion, but could also mean that the bolts were stripped or loose. She was asked about a streetlight repair ticket from June 13, 2011, that documented a leaning pole on the 5200 block of South Lake Park. That ticket also did not reflect any rust or corrosion. ¶ 9 Following Gibbons's direct testimony, the circuit court read the jury a limiting instruction that
"The evidence about [defendant's] division of electrical operations personnel responding to other leaning or downed light poles on the block where this incident occurred is to be considered by you solely as it relates to opportunities such personnel may have had to observe the light pole in question. It should only be considered by you on the issue of notice and not for any other purpose."¶ 10 On cross-examination, Gibbons testified that she had never been called to the location where the pole fell before the incident. If she were writing up a job ticket, she would note finding any rust. ¶ 11 Plaintiff also elicited the following testimony from David Lee, a foreman in defendant's Division of Electrical Operations. He oversaw the Operations Division and ran the dispatch office. He was asked about the 311 call on April 27, 2010, about a pole "leaning dangerously" on the 5200 block of South Lake Park. A leaning pole is considered dangerous, and a crew would be sent out as soon as possible. The note on the job ticket stating "bolts bad" could mean that the bolts were loose and stripped, which is different than being corroded. He was shown two photographs of the light pole that fell on plaintiff, one from 2011 and one from 2014. While he could see a hole on the pole, he testified that the hole depicted in the 2014 picture appeared smaller than the hole depicted on the 2011 photo. ¶ 12 Defendant did not call any witnesses and the case was submitted to the jury, which returned a verdict in favor of defendant and against plaintiff. The jury also answered in the negative a special interrogatory that asked "[d]id the City of Chicago know in the exercise of ordinary care or should it have known of both the condition and the risk of the washers, nuts, and bolts on the pole that fell on May 2, 2016?" ¶ 13 Plaintiff, through newly retained additional counsel, filed a timely posttrial motion for judgment n.o.v., or alternatively, for a new trial and a supporting memorandum of law. In support of her motion for a new trial, plaintiff argued that the circuit court erred by barring Sobieck, Doyle, and Steigerwald from testifying. Plaintiff did not assert any specific argument regarding any other excluded witness. She asserted that Sobieck, a repairman, would have testified consistent with his deposition testimony that he was trained to inspect all the light poles on both sides of the street when called to perform maintenance on pole, and was trained to look for corrosion on light poles he inspected. Plaintiff argued that Sobieck had been barred because his testimony was duplicative of Gibbons's testimony but asserted that the two had different jobs and "the reasons Sobieck might inspect light poles are not necessarily the same reasons Gibbons would." Doyle, a streetlight repairman, would have testified that he responded to a December 2013 call of a streetlight being down on the same block as where the pole fell injuring plaintiff, and he would have testified as to what he did while responding to the call, "which would have established reason and opportunity to inspect the light pole that injured [p]laintiff." Steigerwald would have testified that he responded to a report of a leaning pole in December 2012 on the same block as the one that fell and injured plaintiff. When he arrived, the pole was not leaning, but a refractor on the pole was open. Steigerwald would have testified that he patrolled the entire area in the general vicinity of the pole he responded to, which would have included the pole that fell on plaintiff. Plaintiff identified several exhibits that were not introduced at trial due to the circuit court's exclusion of the three witnesses. ¶ 14 Plaintiff's motion acknowledged that she "did not make formal offers of proof after, or during trial, regarding excluded witness testimony," but argued that plaintiff's counsel made "extensive informal offers of proof during the hearings on the parties' motions in limine, and the [c]ourt was in fact provided a binder containing the deposition transcript of every witness who had been deposed in the case." She argued that "formal offers of proof were not necessary because it was made clear in the process of addressing the parties' motions in limine what testimony [p]laintiff sought to elicit from the relevant witnesses." She sought leave to either make formal posttrial offers of proof to ensure adequate appellate review, or written, informal offers of proof "in the form of deposition and/or anticipated testimony summaries." In her reply in support of her posttrial motion, plaintiff argued that the circuit court should allow her to make formal offers of proof so that the trial court could "determine what prejudice resulted from the exclusion of testimony, based on the actual, live testimony of witnesses." She tacitly acknowledged that any informal offers of proof made during the hearings on the motions in limine were inadequate by arguing that "[h]ow the witnesses would have testified at trial, however, and the specificity of the questions that would have been asked, and how that evidence would have interplayed with the other evidence presented at trial, would necessarily be different than a cold reading of a discovery deposition taken years earlier." ¶ 15 In support of her motion for judgment n.o.v., she argued that it was uncontested that a hole and corrosion existed in the pole that fell at least as far back as June 2011, and that the hole and corrosion were obvious and conspicuous. She asserted that defendant should have been found to have had constructive notice of the defects as a matter of law. Additionally, evidence at trial established that defendant's crews were in the vicinity of the pole on at least two occasions and were trained to inspect all the poles in the vicinity, and thus had reason and opportunity to discover the corrosion to the anchor-bolt assembly of the pole that fell on plaintiff. After hearing argument, the circuit court reserved its ruling on the posttrial motion and granted plaintiff leave to submit informal written offers of proof and allowed defendant to file a written response. ¶ 16 Plaintiff filed a memorandum of law as to why the circuit court could consider posttrial offers of proof and submitted "additional offers of proof" for Fipps, Jachim, Sobieck, Doyle, and Steigerwald. She asserted that they would have testified consistent with their depositions and included recitations of portions of their deposition testimony. She also included a section for each witness entitled "Anticipated Additional Questions at Trial," primarily focused on what their training required them to do as far as inspecting poles in the vicinity of a pole they were working on, and to show that defendant did not follow its own procedures by failing discover the issues on the pole that fell on plaintiff. ¶ 17 Defendant's written response argued in part that plaintiff's posttrial, informal offers of proof should not be considered because, by plaintiff's own admission, informal offers of proof had already been made during the hearing on the motions in limine, and that plaintiff was simply "complain[ing] that the offers of proof were inadequate because she was not able to contemporaneously question the witnesses." Defendant also specifically responded to each additional offer of proof. ¶ 18 The circuit court entered a lengthy written order denying plaintiff's motion for a new trial and for judgment n.o.v. The circuit court explained that, in its rulings on the motions in limine, it limited plaintiff "to calling witnesses related to assignments involving poles structurally compromised by corrosive degradation or loosened anchoring components and the addressed by the [s]mall [g]angs unit; the only [u]nit, per Gibbons, which had been trained and had undertaken the duty to inspect nearby poles on the block for like conditions." The circuit court had specified which prior pole related calls would be admissible and noted that "[e]ach side was, at times, unprepared to cite supportive references accurately. The court asked the parties not to paraphrase the underlying discovery depositions, to become more familiar with them, and to better support their respective positions." The circuit court also recalled that, "in exchange for [defendant] agreeing not to dispute the nature of Gibbons'[s] apparent concession that the [s]mall [g]angs [u]nit's [sic] had undertaken a duty to inspect nearby poles, [defendant] expected that plaintiff would not call other witnesses on that limited subject." ¶ 19 The circuit court then made specific findings as to each excluded witness. Sobieck was properly excluded because he was only ostensibly offered as a witness on the feasibility of the subject pole's repair or replacement, and how defendant managed its light poles. After the pole fell on plaintiff, Sobieck repaired a pole adjacent to the one that fell, and his testimony regarding a subsequent repair to an adjacent pole was "unnecessary and would have been overly prejudicial to the defendant commingled in a case where the principal issue was constructive notice, a pre-injury subject." Plaintiff did not present any argument that the subsequently repaired adjacent pole was evidence of constructive notice of the condition of the pole that fell on plaintiff. Furthermore, any testimony from Sobieck on any "relevant, undisputed topic would have been cumulative to the topics that [p]laintiff could have elicited, and those she did elicit, from the *** witnesses she called during trial." The circuit court found Sobieck was properly barred. ¶ 20 The circuit court next found that Steigerwald was properly barred. Steigerwald was not part of the small gangs unit and responded to a ticket in December 2012 reporting a leaning pole in the vicinity of the pole that ultimately fell. But upon arrival, Steigerwald did not find any leaning poles or any other structural issue with the specified pole. The only thing he found was an open light refractor door on one streetlight. Steigerwald then patrolled the other streetlights to see if any other refractor doors were open. His testimony was not relevant to whether defendant had constructive notice of the condition of the pole that ultimately fell, and nothing suggested that his findings that day required—or that his unit's duties involved—inspecting the structural integrity of nearby poles. ¶ 21 The circuit court found that Doyle was properly excluded as a witness. He responded to a December 2013 call concerning a pole on the same block, but on the other side of the street, that had fallen on a bus after the pole was vandalized. His unit, Streetlight Repairs, did not inspect surrounding poles for structural problems. Furthermore, there was no evidence that vandalism causing a pole to fall would prompt the small gangs unit to conduct a structural inspection of all other poles in the vicinity. Additionally, both Fipps and Jachim were part of the Streetlight Repair unit, and thus did not inspect surrounding poles for structural issues. They would only report structural issues on surrounding poles if they happened to notice them. The circuit court therefore concluded that plaintiff was not entitled to a new trial. ¶ 22 The circuit court considered and rejected plaintiff's motion for judgment n.o.v. The circuit court rejected plaintiff's contention that the conspicuousness of the hole on the pole was the same as the conspicuousness of the deterioration of the anchor-bolt assembly and found that "[i]mputing knowledge of a latent condition against [defendant] would be tantamount to creating a duty to have inspected for it in derogation of the Tort Immunity Act, 735 ILCS 10/3-102 [(West 2016)]." The circuit court concluded that "the condition and associated risks of the components, as they may have existed in 2010 and 2011, were questions of fact that the jury decided in rendering its verdict." Therefore, judgment n.o.v. in plaintiff's favor was not warranted. ¶ 23 The circuit court next considered and rejected plaintiff's argument in support of her motion for a new trial that the jury's verdict was against the manifest weight of the evidence. The circuit court observed that it was the province of the jury to weigh the witness testimony. The jury was free to weigh Gibbons's "duty testimony regarding the ordinary care that may have been required of [defendant] during its 2010 and 2011 nearby assignments." The jury was also free to weigh Leopold's testimony in which he "just conclusively [said] that the anchoring bolts, like the pole itself, would be rusting away if exposed to the same environment," even though Leopold offered "no particular explanation as to exactly how the hole, or any other aspect of the installation, may have facilitated the components' corrosion" other than saying that when snow melted it would run down and collect around the anchor bolts. The jury also heard no testimony as to "when the components would have entered into a risky state." There was also no evidence "by which the jury could have assessed whether [defendant] exercised ordinary care and should have known of the rusted bolts, washers, and nuts other than the related condition of a rusted hole." Further, the jury might have "found that they would have expected degrading components to first cause the pole to lean for [defendant] to be on notice," because Gibbons testified that "a lean was often the telltale sign of corrosive concerns in a pole's components." Absent any evidence of the conspicuousness of the latent condition of the anchor-bolt assembly, plaintiff needed to present evidence of defendant's failure to exercise ordinary care to guard against the risk, which she did not. And it was for the jury to determine whether the defect existed for such a length of time as to constitute constructive notice. The circuit court therefore denied plaintiff's motion for a new trial. After resolving all the other arguments raised by the parties, the circuit court denied plaintiff's posttrial motion. Plaintiff filed a timely notice of appeal.
The complaint was initially filed by plaintiff's father, Hugo Covarrubias, individually and as plaintiff's next friend. Plaintiff was substituted as the party plaintiff when she turned 18. Hugo also assigned to plaintiff his claim under section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2016)). These details are not germane to any issue raised on appeal.
¶ 24 II. ANALYSIS
¶ 25 On appeal, plaintiff argues that the circuit court erred by denying her motion for judgment n.o.v. and that judgment should have been entered in her favor. Alternatively, she argues that the circuit court erred by denying her motion for a new trial because the circuit court should not have excluded various witnesses. We address these arguments in turn. ¶ 26 Plaintiff's first argument is essentially that the issue of constructive notice should have been decided as a matter of law based on the evidence presented at trial and that the circuit court erred by denying her motion for judgment n.o.v. She asserts that she presented uncontroverted evidence "regarding the nature and existence of the dangerous condition, the amount of time it existed, and the light pole's conspicuous location and visible, external corrosion ***." She argues that the visible hole in the pole was evidence of corrosion to the anchor-bolt assembly, and that the hole provided defendant with constructive notice of the deteriorated anchor-bolt assembly. In both 2010 and 2011, crews repaired leaning poles on the same block, and Leopold testified that the corrosion depicted in the 2011 photograph of the pole that fell was the result of years of exposure to corrosive agents. She also argues that Leopold testified that the pole had been painted at some point and that paint had dripped over the hole. ¶ 27 Judgment n.o.v. should only be entered when the evidence at trial, viewed in favor of the nonmovant, so overwhelming favors the movant that a contrary verdict cannot stand. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999). Judgment n.o.v. is inappropriate where there is at least some evidence, together with any reasonable inferences that could be drawn therefrom, that demonstrates a question of fact. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). We may not substitute our judgment on factual questions that were submitted to the jury where the trial evidence did not strongly favor either party. McClure, 188 Ill. 2d at 132. We review a circuit court's ruling on a motion for judgment n.o.v. de novo. Id. ¶ 28 A local unit of government does not have a duty to inspect its property for defects, but instead has a duty to exercise ordinary care to maintain its property in a reasonably safe condition. 745 ILCS 10/3-102 (West 2016). Here, defendant could not be liable for plaintiff's injury unless plaintiff could prove that defendant had "actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." Id. " 'Constructive notice under section 3-102(a) of the Act is established where a condition has existed for such a length of time, or was so conspicuous, that authorities exercising reasonable care and diligence might have known of it. [Citations.] The burden of proving notice is on the party charging it.' " Krivokuca v. City of Chicago, 2017 IL App (1st) 152397, ¶ 50 (quoting Burke v. Grillo, 227 Ill. App. 3d 9, 18 (1992)). Section 3-102 requires that the plaintiff prove that the defendant had timely notice of the specific defect that caused the plaintiff's injuries. Id. The issue of constructive notice is generally a question of fact. Buford v. Chicago Housing Authority, 131 Ill. App. 3d 235, 245 (1985). ¶ 29 Here, it was plaintiff's burden to establish that defendant had constructive notice of the condition of the light pole that fell. Leopold testified that the advanced corrosion on the surface of the pole resulted in a hole, which existed in 2011 and was the product of years of exposure to corrosive elements. He also testified that the advanced corrosion on the surface of the pole was evidence of advanced corrosion to the anchor-bolt assembly. Plaintiff introduced photographs of the pole in 2011 and 2014 to demonstrate the conspicuousness of the hole. And she elicited testimony from defendant's employees that, in 2010 and 2011, small gangs crews responded to issues on poles in the immediate vicinity of the pole that fell. She argued that the combination of this evidence established that defendant would have, through reasonable care and diligence, discovered the dangerous condition of the pole prior to the time it fell. There was also evidence, however, that the small gangs crews would inspect other poles in the vicinity for conditions similar to the pole they were attending, and the degree of inspection depended on the issue they were responding to; if a pole were leaning, the crew would look to see if other poles were leaning but would not necessarily inspect the base of each pole for structural issues. Neither the 2010 nor 2011 calls regarding issues with surrounding poles involved any corrosion to the base of a pole. Gibbons testified that, based on the photographic evidence of the hole in the pole, she would not expect a small gangs crew conducting a visual inspection of the pole to have observed the corrosion. We find that the evidence of constructive notice did not so overwhelmingly favor plaintiff, and the issue of the conspicuousness of the hole on the pole, and by extension the corrosion to the anchor-bolt assembly, presented a question of fact for the jury, such that the circuit court properly denied plaintiff's motion for judgment n.o.v. ¶ 30 Plaintiff relies on several cases to support her argument that the length of time that corrosion existed on the surface of the pole requires a finding that defendant had constructive notice of the defect as a matter of law. She relies on this court's decisions in Livings v. City of Chicago, 26 Ill. App. 3d 850 (1975), Pittman v. City of Chicago, 38 Ill. App. 3d 1036 (1976), Hess v. City of Chicago, 101 Ill. App. 3d 426 (1981), Ramirez v. City of Chicago, 318 Ill. App. 3d 158 (2000), and Glass v. City of Chicago, 323 Ill. App. 3d 158 (2001), all of which involved a plaintiff's claims against defendant for injuries that resulted from defects in defendant's sidewalks. We are not persuaded that those cases require reversal here. ¶ 31 In Livings, the plaintiff testified that he was walking with his walking stick and approached a 2 ½" deep hole in the sidewalk that he had seen previously. Livings, 26 Ill. App. 3d at 851. He moved out of the way of an oncoming cyclist and his walking stick hit an upraised portion of the sidewalk, causing him to fall and injure his leg. Id. at 851-52. Another witness testified that she had walked past the hole in the sidewalk every day and that the defect existed for one to two years prior to the plaintiff's fall. Id. The defendant requested that the circuit court instruct the jury that the defendant could only be held liable if it had actual or constructive notice of the condition or that the condition existed for so long that the defendant in the exercise of ordinary care should have had notice of the defect. Id. The circuit court refused to give the instruction and the jury returned a verdict in favor of the plaintiff. On appeal, we observed that the jury had been instructed that it was the plaintiff's burden to prove that the defendant allowed the sidewalk to be out of repair and that the defendant knew or should have known of the dangerous condition. Id. at 853. We also observed that plaintiff's evidence regarding notice was uncontradicted "and so sufficiently strong that the trial court might well have found that the [defendant] had constructive notice as a matter of law." Id. We recognized that whether a defect existed in a public sidewalk existed for such a time that the defendant is deemed to have constructive notice is ordinarily a question for the jury (id.), but ultimately concluded that there was no genuine issue of fact regarding the conspicuousness of the hole in the sidewalk and only one reasonable conclusion could have been drawn from the evidence (id. at 844). Under the facts of that case, we concluded that the circuit court's refusal to give the requested jury instruction did not warrant reversal. Id. at 855. ¶ 32 In Pittman, the plaintiff was walking home in the evening along a sidewalk with "an abundance of holes, large cracks, and uneven slabs." Pittman, 38 Ill. App. 3d at 1037. The heel of her shoe caught in one the holes causing her to fall forward and injure her nose, which required surgery. Id. At trial, the plaintiff testified that the holes and cracks in the sidewalk "were always there" and that she usually walked along the sidewalk. Id. at 1038-39. The circuit court refused to instruct the jury regarding notice. Id. at 1038. The jury returned a verdict in favor of plaintiff, but the circuit court subsequently granted the defendant's motion for a new trial. Id. at 1036. We granted the plaintiff's motion for leave to appeal and reversed. We found that the circuit court's refusal to give the notice instruction was harmless error. We found that, based on the witness testimony and a photograph of the sidewalk, "[t]he age and duration of the dangerous conditions at bar were easily discernable to the most pedestrian witness as having been in existence for a very long time" and therefore concluded that the failure to give the notice instruction did not affect the plaintiff's right to recovery. Id. at 1039. ¶ 33 Both Livings and Pittman involved jury verdicts in favor the plaintiffs and involved the defendant's challenges to the circuit court's refusal to instruct the jury regarding notice. In both cases, we found that the failure to give the instruction did not affect the outcome because the defects in the sidewalks were so conspicuous and had existed for such lengths of time that the defendant could be charged with constructive notice. Here, there was no testimony that the anyone had seen the corrosion on the pole prior to its collapse, and there was evidence from which the jury could conclude that, despite the length of time that the surface of the pole was corroded, that corrosion—and by extension, the corrosion to the anchor-bolt assembly—was not so conspicuous that defendant might observe it during visual inspections conducted while servicing other light poles. ¶ 34 In Hess, the plaintiff testified that she was walking with a friend along a sidewalk she had never walked on and noticed a "big crack," which she stepped over, but when she put her other foot down, "I caught the next crack in the sidewalk." Hess, 101 Ill. App. 3d at 427. She fell and injured her arm. Id. The plaintiff's friend testified that she was familiar with the area of the incident and that the defect, depicted in a photograph, existed for "at least about a year" before the incident. Id. at 427-28. A senior operations manager for the defendant's department of streets testified that the defendant's sidewalk inspectors did not inspect sidewalks without a preceding complaint, but the plaintiff's counsel confronted him with his testimony from a previous case in which he testified that the defendant's sidewalk inspectors inspected sidewalks in their area once per year. Id. at 428. The circuit court entered a directed verdict in favor of the plaintiff, and we affirmed. Although the defendant had forfeited its arguments regarding constructive notice, we found that a directed verdict was proper where the plaintiff's friend testified that the condition on the sidewalk existed "for at least about a year" prior to the incident and no other evidence was presented regarding the condition of the sidewalk. Id. at 430. Furthermore, based on the operation manager's testimony, there were "doubts as to whether defendant has a regular policy concerning inspection of sidewalks." Id. ¶ 35 Here, unlike in Hess, it was always understood and agreed to by the parties that defendant does not have a formal policy regarding inspections of light poles, and that the small gangs unit would only conduct visual inspections of light poles in the vicinity of light poles to which their attention was specifically directed. Furthermore, Gibbons testified that she would not expect a small gangs crew to observe the corrosion to the light pole when conducting a visual inspection, which bore directly on the conspicuousness of the defect. ¶ 36 In Ramirez, the plaintiff testified that she and her husband were walking from their car to a doctor's office when she fell on the defendant's sidewalk, which was uneven, and injured her knee. Ramirez, 318 Ill. App. 3d at 20. She had walked near the doctor's office for 10 years and never had any problem walking on that portion of the sidewalk. Id. at 21. The doctor testified that the elevation between two of the sidewalk slabs was "maybe a couple of inches," and had been that way for 16 years prior to the plaintiff's injury. Id. The circuit court entered a directed verdict in plaintiff's favor on the issue of notice, and the jury awarded the plaintiff damages. We affirmed the circuit court's directed verdict, observing that the only evidence in the record on the issue of constructive notice was the doctor's testimony that the condition had existed for 16 years prior to the plaintiff's injury and photographs of the portion of the sidewalk. Id. at 22-23. We concluded that
"There was uncontradicted testimony the defect had existed since 1977. As to the conspicuous nature of the defect, the record contains not only [the doctor's] testimony that the defect was '[m]aybe a couple of inches in size', but also several photographs of the defect, all of which dispel the notion that any finding that the defendant did not have constructive notice of the defect could ever stand." Id. at 25.¶ 37 In Glass, the plaintiff testified that she was injured after she tripped on a hole in the defendant's sidewalk that was eight inches wide by three feet long and approximately 2 ½ inches deep. Glass, 323 Ill. App. 3d at 160. Another witness testified that he owned a business near where the plaintiff fell and that one year prior to plaintiff's injuries, he had asked the defendant to repair the sidewalk. Id. The jury was tendered two special interrogatories asking whether the sidewalk on which the plaintiff fell was reasonably safe and whether the defendant had actual or constructive notice of the condition of the sidewalk prior to the plaintiff's injuries. Id. at 161. The jury found in favor of the defendant. It answered the first interrogatory in the affirmative and the second interrogatory in the negative. Id. at 162. On appeal, we found that the circuit court should not have tendered the second special interrogatory because the uncontroverted evidence at trial showed that the condition existed for at least a year prior to the incident and the defendant had been notified of the condition at least a year prior to the incident, such that the issue of notice, whether it be constructive or actual, should have been resolved in the plaintiff's favor as a matter of law. Id. at 164. We ultimately did not find error in the circuit court's denial of the plaintiff's motion for judgment n.o.v. because there was a question of fact on the issue of causation, given conflicting testimony regarding how the plaintiff fell (id. at 165-66), but reversed and remanded for a new trial due to an erroneous jury instruction (id. at 167). ¶ 38 To the extent that Glass found that the defendant had constructive notice of the defect in the sidewalk, that case is again distinguishable because of conspicuousness, given that the defect was readily observable for at least one year prior to the incident. And in Ramirez, it was uncontradicted that the defect had been observed for 16 years prior to the incident. ¶ 39 Taken together, the cases cited by plaintiff provide that, in the face of unequivocal and uncontradicted witness testimony that a defect had been observed and had conspicuously existed for a period of time prior to the injury, the issue of constructive notice is a question of law that should be resolved by the circuit court in the plaintiff's favor. Here, we cannot find that the evidence so overwhelmingly showed that the defect in anchor-bolt assembly was conspicuous to the point that the circuit court should have decided the issue of constructive notice in plaintiff's favor as a matter of law. ¶ 40 Plaintiff next argues that the circuit court should have granted her motion for judgment n.o.v. because the jury's verdict was against the manifest weight of the evidence. As discussed above, plaintiff was not entitled to judgment n.o.v. Furthermore, it is well-settled that a judgment n.o.v. should not be granted merely because the jury's verdict was against the manifest weight of the evidence. Maple, 151 Ill. 2d at 453. We note that this section of plaintiff's appellate brief argues only that she is entitled to a judgment n.o. v.—not a new trial—and she does not argue that the circuit court erred by denying her motion for a new trial on the basis that the jury's verdict was against the manifest weight of the evidence. In her reply brief, plaintiff contends that, because she argued in her brief that the jury's verdict was against the manifest weight of the evidence, she was necessarily requesting a new trial. But that is not the argument she makes in her appellate brief because she only asserted that she was entitled to judgment n.o.v. on the basis that jury's verdict was against the manifest weight of the evidence. Her failure to advance an argument for a new trial based on the jury's verdict being against the manifest weight of the evidence results in forfeiture of that issue. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) ("Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."). ¶ 41 Plaintiff next argues that the circuit court erred by denying her motion for a new trial because the circuit court should not have excluded Steigerwald, Doyle, Sobieck, Jachim, and Fipps, as witnesses. She contends that Steigerwald, Doyle, and Fipps had each responded to calls on the same block as the pole that fell and would have offered testimony relevant to the issue of constructive notice. Jachim and Sobieck were employees who responded immediately after the pole collapse and would have testified to their training in inspecting light poles and what they would have done if they had seen a rusted pole. Plaintiff also contends that, due to the circuit court's rulings, numerous exhibits were improperly excluded. ¶ 42 We agree with defendant that plaintiff did not adequately preserve this issue for appellate review because she failed to make adequate offers of proof at trial. Illinois Rule of Evidence 103 provides that "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Ill. R. Evid. 103(a) (eff. Oct 15, 2015). Where the circuit court excludes evidence, the affected party must show that "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Ill. R. Evid. 103(a)(2) (eff. Oct. 15, 2015). "In civil trials, even if the court rules before or at trial on the record concerning the admission of evidence, a contemporaneous trial objection or offer of proof must be made to preserve a claim of error for appeal." Ill. R. Evid. 103(b)(3) (eff. Oct. 15, 2015). "The purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether exclusion of the evidence was proper." People v. Andrews, 146 Ill. 2d 413, 421 (1992). "[I]n making the offer of proof, counsel must explicitly state what the excluded testimony would reveal and may not merely allude to what might be divulged by the testimony." Id. ¶ 43 Having reviewed the transcripts of the hearings on the motions in limine, we find that plaintiff did not make an adequate offer of proof as to the anticipated trial testimony of the excluded witnesses, and plaintiff has not demonstrated that the substance of the evidence was known to the trial judge. Plaintiff argues that, during the hearings on the motions in limine, the trial judge was provided with copies of every deposition transcript. But she fails to point to specific portions of the trial record to show where her counsel explicitly stated during the trial what the excluded testimony would reveal. As the trial judge noted in his order denying plaintiff's posttrial motion, the trial judge repeatedly "asked the parties not to paraphrase the underlying discovery depositions, to become more familiar with them, and to better support their respective positions." Plaintiff offers nothing on appeal to suggest that she had in fact done enough to apprise the trial judge as to what the excluded witnesses said in their depositions or what they were expected to testify to at trial. Both the statement of facts and argument sections in plaintiff's appellate brief make no effort to explain what arguments the trial judge heard on the motions in limine, and she makes no effort to point to specific instances where her counsel identified anticipated testimony from the excluded witnesses. Her appellate brief relies exclusively on the informal written offers of proof she made in connection with her posttrial motion, which we find improper because Rule 103 clearly contemplates "a contemporaneous trial objection or offer of proof" to preserve an error for appellate review. In our view, submitting informal written offers of proof solely in connection with a posttrial motion where the party did not make an adequate offer of proof at trial does not comply with Rule 103. Plaintiff has not demonstrated that she has satisfied Rule 103 because she has not established that an adequate offer of proof was made during the hearings on the motions in limine or at any time prior to her posttrial motion, resulting in forfeiture of her issues regarding the circuit court's exclusion of witnesses. ¶ 44 Forfeiture aside, we find that the circuit court did not abuse its discretion by excluding Steigerwald, Doyle, Sobieck, Jachim, and Fipps from testifying. A circuit court's ruling on a motion in limine regarding the admissibility of evidence is reviewed for an abuse of discretion. Schmitz v. Binette, 368 Ill. App. 3d 447, 452 (2006). "A trial court abuses its discretion only if it acts arbitrarily without the employment of conscientious judgment, exceeds the bounds of reason and ignores recognized principles of law or if no reasonable person would take the position adopted by the court." (Cleaned up.) Id. (citing Popko v. Continental Casualty Co., 355 Ill. App. 3d 257, 266 (2005)). ¶ 45 First, the circuit court did not abuse its discretion by excluding Steigerwald's testimony. Plaintiff argues that he would have testified, consistent with his deposition, that he was a streetlight repairman who regularly inspected leaning light poles. His inspections included checking the bottom of all the light poles in the vicinity to make sure that nothing was rusted, regardless of the reason why a particular light pole was leaning. In December 2012, he responded to an emergency call of a light pole leaning on the west side of the 5200 block of South Lake Park Avenue. Upon inspection, there was no leaning pole; a light refractor was open. He noted on the work ticket "PAT entire area," which meant "patrolled entire area." Plaintiff contends that Steigerwald's testimony was relevant to the issue of constructive notice because he had been on the same block as the pole that ultimately fell, and that if he performed an inspection of nearby poles consistent with his professed practice, he might have noticed the corrosion on the pole that fell. The circuit court found, however, that Steigerwald was properly excluded because he was not part of a small gangs crew, his job did not include checking the anchor-bolt assembly, and there was no leaning pole in December 2012 that would have caused him to look at the base of any other pole in the vicinity. In other words, although he had been on the 5200 block of South Lake Park Avenue in December 2012, nothing in his deposition testimony established or suggested that he might have observed the specific defect in the pole that fell. The circuit court could reasonably conclude, as it did, that Steigerwald's testimony was not relevant to the issue of defendant's constructive notice of the specific defect in the pole that fell, and the circuit court did not abuse its discretion by excluding his testimony. ¶ 46 Second, the circuit court did not abuse its discretion by excluding Doyle's testimony. Plaintiff argues that Doyle would testify, consistent with his deposition, that he is a streetlight repairman who "repair[s] the lights" and does troubleshooting for electrical issues. When responding to a call, if he noticed a pole damaged or in bad condition, he would write it up for the small gangs crew to address. He responded to a call in December 2013 on the 5200 block of South Lake Park Avenue regarding a streetlight that had fallen on a bus due to vandalism. Plaintiff contends that Doyle's testimony was relevant because he would have testified about the "requirement that a repairman inspect all the light poles on the City block in that situation." The circuit court found that Doyle was properly excluded as a witness because his job was to repair electrical issues with streetlights, and he did not handle structural issues. Although he was on the 5200 block of South Lake Park Avenue in December 2013, his testimony was not relevant because he was there to address electrical issues on a pole that fell due to vandalism, and his only job in that situation is to ensure that there was no danger; in those situations, he would not perform any inspection of other poles in the vicinity. The circuit court did not abuse its discretion by excluding Doyle because the circuit court could reasonably conclude that his testimony was not relevant to the issue of constructive notice of the specific defect on the pole that fell on plaintiff. ¶ 47 Third, the circuit court did not abuse its discretion by excluding Sobieck as a witness. Plaintiff argues that he would have testified, consistent with his deposition testimony, that he repaired streetlights. He was trained to identify hazards on streetlight poles, including how to identify when a pole was corroded, and if he saw a hole in a pole from corrosion, he would write it up and report it. If he found corrosion on one pole, he would look for corrosion on all the other poles on the block. He was sent to the 5200 block of South Lark Park Avenue on May 2, 2016, immediately after the pole fell on plaintiff. He found another pole on the block that was leaning and reported it immediately. Plaintiff contends that, had Sobieck testified at trial, he would have testified that if he were working on any pole the 5200 block of South Lark Park Avenue, he would have inspected the pole that fell on plaintiff and, given the hole on the pole, would have reported it. The circuit court found that Sobieck was properly excluded because his testimony was offered on the feasibility of the subject pole's repair or replacement and how defendant managed its light poles, and his testimony regarding his training for inspecting surrounding lights poles was cumulative of Gibbons's testimony. The circuit court did not abuse its discretion because Sobieck's testimony was not relevant to the issue of constructive notice, and his testimony regarding his training to inspect surrounding light poles was duplicative of Gibbons's testimony. ¶ 48 Fourth, the circuit court did not abuse its discretion by excluding Jachim as a witness. Plaintiff argues that Jachim would have testified, consistent with his deposition, that he repaired streetlights and responded to the scene of the pole that fell on plaintiff. He stated that when he responded to an "all out" call, he would check the other poles in the area to make sure that they were in good condition, which he did on May 2, 2016. Plaintiff does not advance any specific argument as to how the circuit court abused its discretion by excluding Jachim, but implies that his testimony was relevant to the issue of constructive notice because his testimony would have established that there were opportunities to reasonably discover the defect in the pole that fell. The circuit court found that Jachim was properly excluded because he was part of the streetlight repair group, which focused on electrical issues. Like Doyle, if Jachim saw a problem on a pole, he would write it up. We find no abuse of the circuit court's discretion in excluding Doyle where he only responded to the 5200 block of South Lark Park Avenue after the pole that injured plaintiff fell and he would have generally testified as to what inspections streetlight repair workers did. Furthermore, it is clear from Jachim's testimony that he would not inspect the structural integrity of all the other poles in the vicinity when responding to an electrical issue, but if he saw something on a pole, he would report it. ¶ 49 Finally, the circuit court did not abuse its discretion by excluding Fipps as a witness. Plaintiff argues that Fipps would have testified, consistent with his deposition, that he was a streetlight repairman. He would visually inspect a pole to see if there was any damage or corrosion but would not remove the leaves covering any bolts. He testified that when he responded to an "all out" call, he would check to make sure that all the other lights on the circuit were on but would not inspect the integrity of the poles. He responded to an "all out" call in January or February of 2016 on the 5200 block of South Lake Park Avenue. He looked to make sure the other lights were on and did not observe any leaning poles. The circuit court found, as it did with Doyle and Jachim, that Fipps did not testify that he would inspect all the poles in the vicinity when responding to electrical issues but would report any structural issues he saw on surrounding poles. We cannot say that the circuit court abused its discretion by excluding Fipps because, while he was present on the 5200 block of South Lake Park Avenue in early 2016, nothing in his testimony was probative of whether defendant had constructive notice of the specific defect that caused the pole to fall on plaintiff. ¶ 50 In sum, plaintiff failed to make adequate offers of proof to preserve her challenges to the circuit court's exclusion of Steigerwald, Doyle, Sobieck, Jachim, and Fipps as witnesses, and forfeiture aside, the circuit court did not abuse its discretion by excluding those witnesses from testifying.
In discussing the hearings on the motions in limine, plaintiff generally cites to a nearly 80-page section of the record comprising the entire hearing on the motions in limine without providing any specific instances where her counsel identified specific, relevant testimony from any excluded witness. We find those citations to be unhelpful to our understanding of plaintiff's argument. --------
¶ 51 III. CONCLUSION
¶ 52 For the foregoing reasons, the judgment of the circuit court is affirmed. ¶ 53 Affirmed.