Dynek v. City of Chicago

Digitally signed

by Reporter of

Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2021.07.06

11:27:59 -05'00'

Dynek v. City of Chicago, 2020 IL App (1st) 190209

Appellate Court ADDISON DYNEK, Plaintiff-Appellant, v. THE CITY OF

Caption CHICAGO, Defendant-Appellee.

District & No. First District, Fourth Division

No. 1-19-0209

Filed June 11, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-4508; the

Review Hon. Janet Brosnahan, Judge, presiding.

Judgment Affirmed.

Counsel on Michael M. Viglione, of Ryan, Ryan & Viglione, of Waukegan, for

Appeal appellant.

Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth

Solomon, Myriam Zreczny Kasper, and Stephen G. Collins, Assistant

Corporation Counsel, of counsel), for appellee.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with

opinion.

Justices Reyes and Burke concurred in the judgment and opinion.

OPINION

¶1 The trial court entered judgment on the jury’s verdict, which found defendant, the City of

Chicago (City), not liable in the negligence cause of action brought by plaintiff, Addison

Dynek.

¶2 On appeal, Dynek argues that he is entitled to a new trial based on the trial court’s alleged

errors regarding jury instructions, special interrogatories, motions in limine, the exclusion of

evidence, and the City’s improper statements during closing argument. Dynek also argues that

the trial court abused its discretion by denying his motion for sanctions based on defendant’s

alleged discovery violation.

¶3 For the reasons that follow, we affirm the judgment of the trial court. 1

¶4 I. BACKGROUND

¶5 In October 2015, Dynek had a bicycle accident while riding over the Chicago Avenue

bridge. He sued the City for negligence, alleging that his front tire went into a hole created by

a “broken grating bar” on the bridge, causing him to fall and sustain injuries. Dynek alleged

the City was negligent by failing to repair the hole and by making the bridge part of a bicycle

route even though the bridge was not safe for cyclists.

¶6 Among its affirmative defenses, the City asserted that the condition described by Dynek

was reasonably safe, he was comparatively negligent, the City was entitled to discretionary

immunity for its designation of bicycle routes, and the statute of repose barred a claim based

on the design of the bridge.

¶7 At trial, Dynek testified that he usually rode his bicycle east on Chicago Avenue to get to

his office on La Salle Street. Chicago Avenue did not have designated bike lanes, but Dynek

believed that the signs on Chicago Avenue showing bicycle symbols and distances to various

destinations, like the lakefront, “[told] bikers where to go.” He took Chicago Avenue because

it was the most direct route for his commute. Although Kinzie Street had a protected bike lane,

he did not take Kinzie Street because that route would have been longer for him to get to work.

He had previously ridden his bicycle over the Chicago Avenue bridge without difficulty.

¶8 About 8:30 a.m. on the date in question, Dynek rode east on Chicago Avenue “just going

with the flow of traffic.” Traffic was moving at the bridge, which had two eastbound lanes for

traffic. He was riding in the right eastbound lane on the bridge when a car stopped suddenly in

front of him and “cut off” his path. It was impossible to get around the car on its right side, so

he turned his bicycle to the left to get around the car. His bicycle then “stopped,” causing him

to fall. After he fell, he looked back at his bicycle and saw that it was “lodged in the grate” on

the bridge.

¶9 Later, he returned to the bridge and determined that his bicycle “got trapped” at the

centerline between the eastbound and westbound traffic and between grating panels where

there was “also an old broken grating bar.” The broken grating bar was just west of a portion

of the bridge that was filled with concrete, which was at “[t]he middle section of the bridge.”

Dynek testified that the broken grating bar and gap between grating panels, together, caused

In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this

1

appeal has been resolved without oral argument upon the entry of a separate written order.

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his accident. He acknowledged, however, that his earlier affidavit describing the accident did

not mention a gap between grating panels.

¶ 10 Eyewitness Peter Taub testified that he was riding his bicycle behind Dynek at the time in

question. Taub estimated that Dynek was traveling about 20 miles per hour as he approached

the bridge. Eastbound vehicular traffic near the bridge was not moving, and Dynek was riding

his bicycle between the stopped cars. Taub said that it was typical during the morning rush

hour for bicyclists to try to make their way through stopped vehicles. Taub did not see the

accident. When he reached the bridge, he saw that Dynek was lying on the westbound lane of

the bridge and Dynek’s front bicycle tire was lodged in a gap between the metal grates and

oriented in an eastbound direction. The space where the bicycle got lodged was between the

eastbound and westbound lanes and just past the crest of the bridge and east of the bridge’s

concrete center portion. Taub did not recall seeing a broken grating bar where the bicycle was

lodged.

¶ 11 Cathryn Shubert testified that she had a bicycle accident over the Chicago River on the

La Salle Street bridge, which also had metal grates. She stated that bicyclists had to navigate

that bridge by going straight and not turning their front wheel or else it would get stuck in a

gap between grating panels. Her accident happened when she tried to maneuver around a car

in front of her, but her tire did not get stuck in a gap between grating panels. Afterward, she

petitioned the City to examine the safety of metal grate bridges for bicyclists, and the City

hired engineering firm T.Y. Lin for that purpose.

¶ 12 In 2004, T.Y. Lin issued a report that identified ways to improve metal grate bridges and

make them safer for cyclists. The report found that the metal grating on bridges could cause a

channeling effect or sliding for bike tires and narrow tires could become lodged in the gaps

between bridge grates. Longitudinal gaps, which were oriented in the direction of travel, were

the most problematic for cyclists. The report rated the deck quality of the Chicago Avenue

bridge as poor.

¶ 13 Mike Amsden was the assistant director of transportation planning at the City’s

transportation department at the time of Dynek’s accident. Amsden was in charge of the City’s

bike map in 2014 and 2015 and did not know about the T.Y. Lin report until Dynek sued the

City. The City’s bike map designated Chicago Avenue between Elston Avenue and the

lakefront as a signed bike route but had a squiggly line over the Chicago Avenue bridge, which

warned cyclists to use caution there. Amsden stated that metal grate bridges were a “fact of

life” that people had to cross throughout the City, but he knew these bridges were difficult and

intimidating for cyclists to cross at times. He relied on his personal judgment when he

designated signed bike routes and considered factors like destinations, street widths, traffic

volume and street ownership.

¶ 14 Amsden chose to designate Chicago Avenue as a signed bike route because it connected to

many mass transit lines, the lakefront trail, and the bike lanes on Milwaukee Avenue. The

width and amount of vehicular traffic on Chicago Avenue did not have enough space to install

bike lanes. Amsden rejected the option of designating Division Street as a bike route because

Division Street had two bridges over the Chicago River and connected to fewer destinations

whereas Chicago Avenue had just one bridge. He also rejected North Avenue, which was a

state route, was narrow, and had highspeed traffic. Grand Avenue also had highspeed traffic.

Amsden stated that it was nonsensical to designate a bike route using a bridge that had a better

rating for cycling but was miles away from the route.

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¶ 15 Amsden described the Chicago bike 2015 plan, which the City published in 2006, as a

planning document with aspirational goals and objectives to make the City more bike friendly.

Although the plan recommended retrofitting metal grate bridges to make them safer for

cycling, the plan’s recommendations were not mandatory. Moreover, the plan did not mention

longitudinal gaps in the center of a roadway, and Amsden did not expect cyclists to ride in the

center of the road.

¶ 16 Luis Benitez, the chief bridge engineer of the City’s transportation department, testified

that the Chicago Avenue bridge used metal grating panels after it was resurfaced in 1960 from

wood to metal. This bridge, which would rise open to allow boat traffic to pass beneath it, used

metal grates to minimize weight and allow drainage. The longitudinal gaps between grating

panels were a design feature that accommodated the expansion and contraction of the metal

grates during changes of temperature. Inspection reports from 2010 and 2014 noted that some

of the grating bars on the Chicago Avenue bridge were broken, but broken grating bars did not

cause structural concerns.

¶ 17 Dynek presented the testimony of Greg Pestine, a civil engineer, who opined that the 1.75

inch wide gap between grating panels and a broken grating bar in the vicinity of that gap caused

Dynek’s accident. The engineering field recognized that gaps between grating panels on a

metal grate bridge can be hazardous for bicyclists. Pestine opined that the longitudinal gap

between grating panels on the Chicago Avenue bridge violated the safety standards of the

American Association of State Highway Transportation Officials and the Federal Highway

Association.

¶ 18 Dynek moved for a directed verdict on the question of whether the City had notice that the

Chicago Avenue bridge was dangerous for bicyclists. The City opposed the motion, arguing

that the jury heard evidence that the condition Dynek complained of did not present an

unreasonable risk of harm to bicyclists. The court agreed with the City and denied Dynek’s

motion.

¶ 19 The jury reached a verdict in favor of the City and, by answering special interrogatories,

found that Dynek was contributorily negligent, Amsden determined policy and exercised

discretion when he designated Chicago Avenue as a signed bike trail, and the City was not

negligent by failing to repair a broken grating bar on the Chicago Avenue bridge and by

designating the Chicago Avenue bridge as part of a bike route.

¶ 20 Dynek moved the court for a judgment notwithstanding the verdict, a new trial based on

the court’s allegedly erroneous rulings on evidence and jury instructions, and sanctions based

on the City’s alleged discovery violation. The court denied Dynek’s motions, and he appealed.

¶ 21 II. ANALYSIS

¶ 22 Dynek argues that he is entitled to a new trial due to the trial court’s alleged erroneous

rulings regarding jury instructions, special interrogatories, motions in limine, motion for a

directed verdict, and the City’s improper statements during closing argument. He also argues

that the trial court abused its discretion by denying his motion for sanctions based on the City’s

alleged discovery violation.

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¶ 23 A. Jury Instructions

¶ 24 Dynek argues the trial court erred by instructing the jury about the statute of repose because

his pleadings, which did not allege negligent operation and maintenance of property, did not

implicate that statute and the trial evidence did not support that instruction. Dynek argues that

the statute of repose was irrelevant and the jury was given no guidance concerning how to

apply it.

¶ 25 “The trial court has discretion to determine which instructions to give the jury and that

determination will not be disturbed absent an abuse of that discretion.” Schultz v. Northeast

Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002). A trial court abuses its

discretion when its decision is arbitrary, fanciful, unreasonable, or where no reasonable person

would adopt its view. People ex rel. Department of Transportation v. Kotara, L.L.C., 379 Ill.

App. 3d 276, 286 (2008). This discretion of the trial court includes determining which issues

are raised by the evidence presented at trial and which jury instructions are thus warranted.

Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 549 (2008). “All that is required to justify the

giving of an instruction is that there be some evidence in the record to justify the theory of the

instruction.” Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007). Moreover, an instruction does not

justify reversal unless it “clearly misled the jury and resulted in prejudice to the appellant.”

Schultz, 201 Ill. 2d at 274.

¶ 26 According to the record, when the City proposed a jury instruction that presented

affirmative defenses, including one based on the statute of repose, Dynek objected, arguing

that his pleadings did not allege a design defect or construction-related issue and thus did not

implicate the statute of repose. He also argued that the City’s proposed instruction failed to use

the actual language of the statute of repose.

¶ 27 The trial court ruled that an instruction about the statute of repose was appropriate because

the trial testimony made a “big deal about the longitudinal gap” on the Chicago Avenue bridge

and the jury could find from that evidence that the longitudinal gap was the only thing that

caused Dynek’s injury. The court ruled, however, that the statute of repose would not be

presented as an affirmative defense because that would confuse the jury. Instead, the City was

allowed to argue that it could not be held liable for the longitudinal gap because it was a

structural design issue that was over 10 years old. The court used Illinois Pattern Jury

Instructions, Civil, No. 60.01 (rev. Dec. 2011) to create the nonpattern instruction Dynek

challenges on appeal. 2

¶ 28 The complained of instruction stated:

“There was in force in the state of Illinois at the time of the occurrence in question

a certain statute which provided no action based upon tort, contract, or otherwise may

be brought against any person for an act or omission of such person in the design,

planning, supervision, observation, or management of construction or construction of

an improvement to real property after ten years have elapsed from the time of such act

or omission.”

¶ 29 We find that the trial evidence justified the nonpattern instruction about the statute of

repose, which bars actions “against any person for an act or omission of such person in the

2

Because the jury used a nonpattern jury instruction, we do not address Dynek’s groundless

argument challenging this instruction based on the court’s exclusion of the irrelevant second paragraph

of Illinois Pattern Jury Instructions, Civil, No. 60.01 (rev. Dec. 2011).

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design, planning, supervision, observation or management of construction, or construction of

an improvement to real property after 10 years have elapsed from the time of such act or

omission.” 735 ILCS 5/13-214(b) (West 2018). The nonpattern instruction followed the

language of the statute, and the jury heard evidence that a design feature of the Chicago Avenue

bridge could have caused Dynek’s accident. Specifically, Benitez testified that longitudinal

gaps between grating panels on the Chicago Avenue bridge were a design feature since 1960.

Taub testified that Dynek’s bicycle became lodged in a longitudinal gap on the east side of the

crest of the bridge, which was not where the broken grating bar was located. Amsden and

Pestine testified about the danger that gaps between grating panels posed to bicyclists. This

testimony could have led the jury to find the City liable based solely on the existence of the

longitudinal gap design feature even though the statute of repose did not allow Dynek to

recover on that basis because that feature was more than 10 years old. The trial court’s

nonpattern instruction about the statute of repose made clear to the jury the legal principle that

Dynek could not recover if only the longitudinal gap caused his injury.

¶ 30 Dynek also argues that the court erred by rejecting his proposed instruction No. 29, which

would have informed the jury that “[t]he City previously took the position[s] in this case that

a metal grate bridge is an obvious danger to any bicyclist” and “that metal grating tends to

deflect bicycle wheels and makes staying upright a challenge.” This argument lacks merit.

According to the record, the City withdrew its first motion for summary judgment, which had

argued that the “potential danger posed by [a metal grating] surface is readily apparent to

anyone who has ridden a bicycle.” That statement does not constitute a judicial admission of

danger by the City because it was not clear, unequivocal, and uniquely within the City’s

personal knowledge. See Abruzzo v. City of Park Ridge, 2013 IL App (1st) 122360, ¶ 36.

Rather, the statement, which appeared in a motion the City later withdrew, mentioned a

potential danger and addressed how a typical bicyclist would have perceived the bridge. The

trial court acted within its discretion by rejecting Dynek’s instruction No. 29.

¶ 31 Last, Dynek argues the court erred by rejecting his instruction Nos. 7 and 27, which

pertained to the City’s alleged concealment of prior similar lawsuits involving bicycles that

crashed on metal grate bridges. We find no abuse of discretion here because, as discussed

below, the record supports the trial court’s ruling that the City did not conceal that information.

¶ 32 B. Special Interrogatories

¶ 33 Dynek argues the trial court committed reversible error when it gave the jury four special

interrogatories that were all improper because the interrogatories asked compound questions

or contained multiple questions and subparts, rather than consisting of a single direct question.

¶ 34 Section 2-1108 of the Code of Civil Procedure governs special interrogatories and states:

“Unless the nature of the case requires otherwise, the jury shall render a general verdict.

The jury may be required by the court, and must be required on request of any party, to

find specially upon any material question or questions of fact submitted to the jury in

writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted

to the jury as in the case of instructions. Submitting or refusing to submit a question of

fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the

special finding of fact is inconsistent with the general verdict, the former controls the

latter and the court may enter judgment accordingly.” 735 ILCS 5/2-1108 (West 2016).

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¶ 35 The trial court has no discretion to reject a special interrogatory that is in proper form.

Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1033 (2003). A special interrogatory

is in proper form if “(1) it relates to an ultimate issue of fact upon which the rights of the parties

depend, and (2) an answer responsive thereto is inconsistent with some general verdict that

might be returned.” Simmons v. Garces, 198 Ill. 2d 541, 555 (2002). A special interrogatory’s

response is inconsistent with a general verdict only where it is “clearly and absolutely

irreconcilable with the general verdict.” (Internal quotation marks omitted.) Id. at 555-56. The

purpose of a special interrogatory is not to instruct the jury but to serve as a check on the jury’s

deliberation and to enable the jury to determine one or more specific issues of ultimate fact.

Id. at 555. Additionally, a special interrogatory (1) should consist of a single direct question;

(2) should not be prejudicial, repetitive, misleading, confusing or ambiguous; and (3) should

use the same language or terms as the tendered instructions. Id. at 563. We review a trial court’s

ruling regarding a request for a special interrogatory de novo, i.e., without any deference to the

trial court. Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085, ¶ 35.

¶ 36 According to the record, the trial court gave the jury the following four special

interrogatories, which the jury answered as indicated below by an “X.” Each special

interrogatory was given to the jury on a separate page. The City proposed the first and second

special interrogatories. The trial proposed the third and fourth special interrogatories, which

aimed to identify “what theory [the jury is] finding liability on” in the event of a verdict in

Dynek’s favor.

“1. Was there contributory negligence on the part of Addison Dynek before and at

the time of the occurrence which was more than 50 percent of the proximate cause of

his injury? __X__Yes _____No”

“2. On or before October 19, 2015, did Mike Amsden of the City of Chicago

Department of Transportation serve in a position involving the determination of policy

or the exercise of discretion? __X___Yes _____No

If you answer no, please stop here and answer no further questions on this page.

If you answered yes to the question above, please answer the following

question:

On or before October 19, 2015, did Mike Amsden both determine policy

and exercise discretion regarding the designation of Chicago Avenue as a

signed bike route? __X_Yes ___No”

“3. Was the City of Chicago negligent in failing to repair a broken or corroded

metal grating bar on the Chicago Ave. Bridge, which it knew or should have known

presented an unreasonable risk of harm? _____Yes __X__No

If your answer to the above question is “no,” stop here and do not answer the

next question.

If you answer to the above question is “yes,” answer the next question:

Was the City of Chicago’s negligent failure to repair a broken or corroded

metal grating bar on the Chicago Ave. Bridge a cause of Plaintiff’s injuries on

October 19, 2015? _____Yes _____No”

“4. Was the City of Chicago negligent in designating the Chicago Avenue Bridge

part of a bicycle route when it knew or should have known that the Chicago Avenue

Bridge presented an unreasonable risk of harm for bicyclists? _____Yes __X__No

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If your answer to the above question is “no,” stop here and do not answer the

nest question.

If your answer to the above question is “yes,” answer the next question:

Was the City of Chicago’s negligent designation of the Chicago Avenue

Bridge as part of a bicycle route a cause of plaintiff’s injuries on October 19,

2015? _____Yes _____No”

¶ 37 We agree with Dynek that special interrogatory No. 1 was impermissibly compound

because it required the jury to consider multiple questions relating to the cause of Dynek’s

injuries. The jury was asked (1) whether Dynek was contributorily negligent; (2) if so, whether

his negligence proximately caused his injuries; and (3) if so, whether the negligence

attributable to him was greater than 50% of the total negligence contributing to his injuries.

Those multiple questions rendered the interrogatory impermissibly compound. See Smart v.

City of Chicago, 2013 IL App (1st) 120901, ¶ 37.

¶ 38 Although special interrogatory No. 2 had a subpart and thus asked the jury two questions,

neither question was improperly compound. Special interrogatory No. 3 also had a subpart and

thus asked the jury two questions, but the first question was improperly compound, asking the

jury whether the broken metal grating bar presented an unreasonable risk of harm and whether

the City knew or should have known about that risk. Similarly, special interrogatory No. 4

impermissibly asked the jury a compound question in the first of its two subparts, i.e., whether

the Chicago Avenue bridge presented an unreasonable risk of harm for bicyclists and whether

the City knew or should have known about that risk. The form of special interrogatory Nos. 1,

3 and 4 was “in direct contradiction to the established rule that a special interrogatory must be

phrased as a single, straightforward question.” Id. We find, however, that special interrogatory

No. 2 did not violate this rule because each subpart of that interrogatory was a single,

straightforward question.

¶ 39 It can be reversible error to refuse a special interrogatory that is in proper form. See Van

Hattem v. Kmart Corp., 308 Ill. App. 3d 121, 132 (1999). However, a court’s decision to submit

a special interrogatory can merit a new trial “only upon a showing of prejudice to the

complaining party or jury confusion.” Douglas v. Arlington Park Racecourse, LLC, 2018 IL

App (1st) 162962, ¶ 66.

¶ 40 Dynek cannot show prejudice to him or jury confusion because the court did not enter

judgment in favor of the City based on any special interrogatory answer. Rather, the jury

reached a general verdict in favor of the City, and the court entered judgment on the verdict.

The answers to the four special interrogatories were consistent with the general verdict and

merely showed that the jury also found in favor of the City on each of the issues the special

interrogatories addressed. See id. ¶ 72 (even if the special interrogatory was improperly given,

the reviewing court could not “see how plaintiffs could possibly establish prejudice from the

special interrogatory, standing alone,” where the special finding was consistent with the

general verdict). The special interrogatories tracked the trial court’s proper instructions on the

issues of contributory negligence, discretionary immunity, and Dynek’s theories of the City’s

alleged negligence, and the jury’s answers were consistent with the verdict. We do not find

that the jury was confused when the general verdict and special finding were perfectly

consistent. See id. ¶ 73.

¶ 41 We conclude that Dynek cannot obtain a new trial on the basis that the court gave the jury

special interrogatories that were not in the proper form because Dynek has not shown prejudice

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or jury confusion.

¶ 42 C. Motions in Limine

¶ 43 Dynek argues that he is entitled to a new trial based on the trial court’s allegedly erroneous

rulings on motions in limine and the admission of evidence during the trial. We review the trial

court’s decisions on motions in limine and the admission of evidence at trial for an abuse of

discretion. Inman v. Howe Freightways, Inc., 2019 IL App (1st) 172459, ¶ 140; Boyd v. City

of Chicago, 378 Ill. App. 3d 57, 67 (2007). The exclusion of cumulative evidence is also within

the discretion of the trial court. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495 (2002).

¶ 44 First, Dynek argues the court erred by granting the City’s motion in limine No. 20, which

sought to bar evidence of maintenance on bridges other than the Chicago Avenue bridge.

Dynek argues the City’s improvements to other metal grate bridges were relevant to the issue

of notice and would have shown that the City knew metal grate bridges were dangerous to

bicyclists. Dynek also argues the court’s ruling prevented him from showing that the City had

a ministerial duty to make metal grate bridges safer for cyclists. The trial court barred evidence

regarding ways the City could have improved the Chicago Avenue bridge because Dynek’s

negligence claim was not based on a failure to improve the Chicago Avenue bridge and the

barred evidence incorrectly suggested the City had a duty to improve that bridge.

¶ 45 We find no abuse of discretion here. See Horrell v. City of Chicago, 145 Ill. App. 3d 428,

432 (1986) (the City does not have a duty to improve its property). Furthermore, the exclusion

of this evidence did not prejudice Dynek because Amsden testified that he knew metal grate

bridges made cycling more challenging and could be difficult and intimidating to cross at

times. Dillon, 199 Ill. 2d at 495 (“the exclusion of cumulative evidence is within the discretion

of the trial court”). Moreover, Dynek’s theory of a ministerial duty lacks merit. Improvements

become ministerial only when a municipality begins to undertake them; at that point, the City

has a duty “to see that the work is done in a reasonably safe and skillful manner.” (Internal

quotation marks omitted.) Greene v. City of Chicago, 73 Ill. 2d 100, 108 (1978). Dynek

presented no evidence showing that the City had commenced improvements to the Chicago

Avenue bridge.

¶ 46 Next, Dynek argues the court erred by denying his motion in limine No. 12, which sought

to bar Amsden from testifying about the deliberative process the City used to designate bicycle

routes. Dynek argues that the City failed to disclose its intention to elicit that testimony from

Amsden. The trial court, however, allowed Amsden’s testimony about this topic because

Dynek had identified Amsden as a witness, the City disclosed that it had reserved the right to

call any witness Dynek disclosed regarding any subject matter the witness discussed at a

deposition, and Amsden’s deposition testimony showed that he was asked about the planning

process the City used to designate bicycle routes. We find no abuse of discretion here. See Ill.

S. Ct. R. 213(g) (eff. Jan. 1, 2018) (“[i]nformation disclosed in a discovery deposition need not

be later specifically identified in a” party’s disclosure of witnesses).

¶ 47 Next, Dynek argues the court erred by granting the City’s motion in limine No. 36, which

sought to exclude a photograph of the Chicago Avenue bridge from 2011, four years before

Dynek’s accident. The photograph, which depicted the bridge when it was under construction

and had barricades to guide traffic, did not resemble the scene Dynek encountered on the date

of his accident. Accordingly, we find no abuse of discretion by excluding the irrelevant

photograph, which could have confused the jury.

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¶ 48 Next, Dynek argues the court erred by granting the City’s motion in limine No. 21, which

sought to bar Taub from testifying about his prior accident on the Chicago Avenue bridge.

Dynek argues that ruling prevented him from showing the danger of a gap between grating

panels. The court excluded that evidence, explaining that Taub did not report his accident to

the City and could not say where on the bridge the accident happened. We find no abuse of

discretion. Due to Taub’s vague testimony about the location of the accident, Dynek could not

lay the necessary foundation for that testimony. See Alwin v. Village of Wheeling, 371 Ill. App.

3d 898, 917 (2007) (“Where evidence of prior accidents is offered to show the existence of a

particular danger or hazard, a foundation must be laid establishing the similarity between the

prior accidents and the present accident.”). Moreover, Dynek presented evidence about the gap

danger with the T.Y. Lin report’s description of the longitudinal gap problems.

¶ 49 Next, Dynek argues the court erred by excluding certain statements Amsden allegedly

made about metal grate bridges. Amsden, however, did not recall making those statements,

which had appeared in a blog post before he was employed by the City. Moreover, the

statements did not pertain specifically to the Chicago Avenue bridge. We find no abuse of

discretion by the trial court in excluding those irrelevant statements.

¶ 50 Next, Dynek complains that offers of proof should have been allowed for “all questions”

asked of various witnesses. Dynek had forfeited review of this claim by failing to cite the

record to identify any specific questions and supporting legal authority in violation of Illinois

Supreme Court Rule 341(h)(7) (eff. July 1, 2008). See Sekerez v. Rush University Medical

Center, 2011 IL App (1st) 090889, ¶ 80.

¶ 51 Finally, Dynek argues the trial court erred by barring publicly available evidence that he

discovered immediately before the trial. The excluded evidence concerned two lawsuits that

involved bicycle accidents that did not occur on the Chicago Avenue bridge and did not involve

the longitudinal gap design at issue in this case. In addition to the complaints, the excluded

evidence about the two prior lawsuits included a discovery deposition, meeting minutes of a

project for barrier free cycling, field notes and photographs, memoranda concerning metal

grate bridges and bicycle safety, certain presentation materials, and e-mails, letters and

postcards sent to the City regarding the danger of metal grate bridges to bicyclists. The trial

court ruled that Dynek did not timely disclose this evidence, but Dynek argued that the City

withheld this evidence, did not request these materials during discovery, and could not have

been prejudiced by the admission of this evidence because the City could not have been

unfairly surprised by its own project safety committee records, letters to its employees, the

deposition testimony of its employee, the lawsuits it defended, and the evidence it possessed

since 2002. Dynek argues he suffered severe prejudice by the exclusion of this evidence that

proved the City negligently failed to tell Amsden, the City employee responsible for

designating the Chicago Avenue bridge as a bike route, that this bridge was unsafe and

negligently put Benitez in charge of bridge safety even though he never investigated whether

the Chicago Avenue bridge was safe for cyclists.

¶ 52 A decision to bar evidence is reviewed for an abuse of discretion. Boyd, 378 Ill. App. 3d at

67. Dynek disclosed his intention to use those publicly available documents after discovery

had closed and days before the trial was set to begin. The trial court did not abuse its discretion

by ruling that Dynek’s use of those documents would have unfairly prejudiced the City, which

had no notice that it had to defend against the facts in the excluded documents because Dynek

never made those facts a part of his case and the City would not have assumed Dynek would

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want to use old documents, some of which were from 2002 to 2004, when his discovery

requests went back only to 2005. We address below Dynek’s allegations that the City withheld

this evidence during discovery.

¶ 53 D. Directed Verdict

¶ 54 Dynek argues the trial court erred by denying his motion for a directed verdict on the issue

of the City’s notice that the Chicago Avenue bridge was not safe for cyclists. We review the

court’s decision to deny a directed verdict de novo. Lawlor v. North American Corp. of Illinois,

2012 IL 112530, ¶ 37.

¶ 55 Dynek was not entitled to a directed verdict on the issue of notice because there was

evidence that the bridge did not present an unreasonable risk of harm. Specifically, Dynek

testified that he had ridden over the bridge many times without incident. Also, the City

presented evidence through Taub and Amsden and the cross-examination of Dynek that

showed the condition that apparently caused his accident was in the center of the Chicago

Avenue bridge, between opposing lanes of traffic, where bicyclists were not expected to ride.

¶ 56 E. Closing Argument

¶ 57 Dynek argues that he is entitled to a new trial based on multiple improper statements by

the City during closing argument. “[C]ounsel is afforded wide latitude in closing argument”

(Wilson v. Humana Hospital, 399 Ill. App. 3d 751, 760 (2010)), and the trial court’s

determination on the propriety of closing argument will not be disturbed on review absent an

abuse of discretion (Thornhill v. Midwest Physician Center of Orland Park, 337 Ill. App. 3d

1034, 1053 (2003)). A party’s “[f]ailure to object to improper closing argument results in

forfeiture of the objection on appeal.” Jacobs v. Yellow Cab Affiliation, Inc., 2017 IL App (1st)

151107, ¶ 121.

¶ 58 Dynek objected several times when the City described the effect of the statute of repose

and emphasized that Dynek could not prevail if the longitudinal gap was the sole cause of his

accident because the City could not be liable based on a design issue that was over 10 years

old. Our review of the record establishes that the City’s arguments were consistent with the

court’s proper pretrial ruling that the statute of repose prevented Dynek from arguing that the

City could be strictly liable for the existence of the gap. Contrary to Dynek’s argument on

appeal, the City did not make the improper argument that the statute of repose defeated his

entire case. Instead, the City argued that if the longitudinal gap caused the accident, the City

could have been liable to Dynek only if he proved the City negligently designated the Chicago

Avenue bridge as part of a bicycle route. Furthermore, the court informed the jurors that the

court would instruct them on the law and they should disregard any arguments by counsel that

were inconsistent with the court’s instructions or not supported by the evidence. See People v.

Wilson, 257 Ill. App. 3d 670, 688 (1993) (a new trial based on a party’s description of the law

is not warranted where the trial court gave the jury a curative instruction).

¶ 59 Dynek also contends the City improperly argued about matters not in evidence when the

City told the jury not to speculate about any (1) medical bills because Dynek was not seeking

recovery based on any medical bills and (2) lost wages because he failed to introduce any

evidence on that matter other than his testimony that had he missed time off of work. Dynek’s

arguments lack merit. The record establishes that Dynek neither sought medical expenses nor

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presented evidence to support a claim of lost wages. The City’s challenged remarks were

proper and relevant to the issue of damages.

¶ 60 Dynek argues that no evidence supported the City’s description of the accident, i.e., that

Dynek, instead of waiting with the stopped vehicular traffic, was trying to pass the stopped

cars. The record, however, establishes that Dynek chose to cycle on Chicago Avenue, which

did not have a designated bicycle lane, because it was a direct route to his office that enabled

him to get to work faster. Moreover, Taub testified that, at the time of the accident, Dynek

approached the bridge at a fast speed while vehicular traffic was stopped and rode between the

stopped cars, trying to make his way through the stopped traffic—a maneuver typical of

bicyclists during the morning rush hour. Taub also testified that after the accident, he saw

Dynek lying on the westbound lane of the bridge and the front tire of his bike was lodged in a

space between the eastbound and westbound lanes. We find that the City’s challenged

argument was a reasonable inference from the evidence presented at trial. See Sikora v. Parikh,

2018 IL App (1st) 172473, ¶ 60.

¶ 61 Dynek challenges other remarks the City made during closing argument, but the record

establishes that he failed to preserve those issues for review by both making a timely objection

and filing a sufficiently specific posttrial motion that contains the points relied upon and

specifies the grounds in support thereof. Jacobs, 2017 IL App (1st) 151107, ¶ 121; Sekerez,

2011 IL App (1st) 090889, ¶ 64.

¶ 62 F. Discovery and Sanctions

¶ 63 Dynek argues the court abused its discretion when it denied his motion for sanctions based

on the City’s alleged discovery violation. Specifically, Dynek contends the City failed to

produce documents of prior lawsuits involving bicycle crashes on metal grate bridges and

thereby violated the trial court’s order to produce any documents giving the City notice of

dangerous or defective conditions or safety issues concerning the Chicago Avenue bridge.

¶ 64 According to the record, Dynek’s requests for documents during discovery included

request No. 16, which sought “[a]ny and all Complaints filed against the City within ten years

prior to the subject occurrence alleging cycling accidents caused by broken, defective, and/or

dangerous grating on City owned bridges.” The City objected to this request as overbroad and

seeking irrelevant information. In his response letter to the City, Dynek asserted that the

requested information was relevant and neither overbroad nor unduly burdensome. When

Dynek later filed a motion to compel, however, he did not seek the production of documents

responsive to request No. 16. Instead, he moved to compel the production of documents

responsive to his request No. 13, which sought “[a]ny and all documents notifying the City of

dangerous and/or defective conditions and/or safety issues with respect to the bridge identified

in Plaintiff’s Complaint from October 19, 2010 to the present.” The court’s order granted

Dynek’s motion to compel with respect to request No. 13 but did not mention request No. 16,

which sought complaints alleging bicycle accidents on any of the City’s metal grate bridges.

¶ 65 Ten days before the trial date, Dynek moved for sanctions, alleging the City had concealed

two lawsuits involving bicycle accidents on the La Salle Street bridge and thereby violated the

court’s order regarding document discovery. Dynek also asserted during both a discovery

conference and a hearing on the motion to compel that the City’s counsel orally represented

that “no lawsuits existed.” The City responded that it had complied with the discovery order,

Dynek failed to support his allegations about statements from the City’s counsel with a

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transcript or bystander’s report, and Amsden’s deposition, which had occurred almost one year

earlier, indicated that Dynek’s counsel knew about a La Salle Street bridge lawsuit. The court

denied Dynek’s motion for sanctions, stating the court had consistently limited the scope of

discovery to items relevant to plaintiff’s alleged defect, i.e., the broken grating bar that created

a hole in the Chicago Avenue bridge. The court added that information about the La Salle

Street bridge lawsuits had been publicly available and plaintiff’s failure to timely learn about

those lawsuits by conducting an online search earlier was not the City’s fault. The trial court

concluded that the facts did not indicate the City had concealed the La Salle Street lawsuits.

¶ 66 We agree with the trial court’s ruling and reasoning and find that the trial court did not

abuse its discretion by denying Dynek’s motion for sanctions.

¶ 67 III. CONCLUSION

¶ 68 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 69 Affirmed.

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