matter is that i do it it's not a matter of breach of duty or any of the other elements of negligence as the court has previously pointed out in illinois judy is analyzed by four factors whether the injury that is sustained by an individual is foreseeable whether that injury is likely what the burden guarding against the injury amounts to and what the consequences of posing such a burden as against a particular defendant would take in this case we're dealing with an august first two thousand and five incident in which mr steven garcia it's playing with its three year old stepson in the front yard while home looking privately in jack st i'm sorry young street owned by the defendant as the testimony in this case both mr young and for mr garcia on the condition street was very hazardous including a number of potholes because of cheap and unreliable methods that the defendant the first exception being the deliberate encounter exception applies because if the liberty encounter occurs where a reasonable person being aware of hazardous nature of an obstacle would still choose to encounter that because the apparent benefits of encountering it out was a generally hazardous inquiry it's the same thing that we have here you may not have been aware of the specific possible specific time that trip dog but he was aware as he proceeded into that street per his undisputed testimony that will find was traction and it appears to us from the analysis and from what we see from judge thomas that he didn't ever properly consider deliberate this is also bolstering fact that at the opening arguments are will judge klaus said the parties that would act similarly to what mr see it even knowing the potholes and attempting to take the most direct route to protect the child in fact i believe that if you can specifically question even the defendant jack young would agree that you would do a similar because he wanted the children out of st because he was concerned about their safety and well being the only reasonable inference there is that he had a specific appreciation for the exact risk that arose that he appreciated the benefits of what yes i would agree that in this case the defendant had no role in creating a structure over eyes i mentioned in my brief i believe that a role in creating a distraction just renders simple the question of whether or not that distractions foreseeable and that's the st injuring themselves and happy oncoming vehicles and for as nap true everywhere every street every residential area i was able to anybody that a child might enter the street and get hurt by car yes i would agree that that is foreseeable to everyone in this case however we do have the defendant specifically testifying that he also tried to take some steps to prevent that from happening and the question is should he have pared the condition of his street to protect people using it based off what you could foresee and i think the fact that anyone could foresee that in no way lets the defendant off the hook for allowing his street to continue to exist in this hazardous condition it's especially true as we move through the factors becomes unusable that you have to directly intervene the burden of putting the studio is simply that he would have to do it more consistently than he has done it in the past testifies it does it once a year whereas if you've done it twice a year that would be able to abate the extent of the damage or you could simply stop using the cheap road packing materials that you've been doing an undertaking more earl and more permanent solution to the potholes that exist in the road how much of a burden is that on a man who's already consequences of posing that there are no consequences it is a duty that he has undertaken on himself he's already doing it we just ask that he held the doing that correct they do it in such a  appreciate the risks of walking into the roadway and attempt to save his three year old stepson the deliberate encounter exception should apply and in its application should be considered in those four factors  he knew would be a tension issue and which he wished to avoid and that for some this court should find that yoda due to the likelihood of injury for an individual walking into a street in the condition of young street the burden of guarding against this issue is minimal if not nonexistent it's something the defendant has already done it won't it won't be any extra burden to him in any meaningful sense that he's simply asked to carry through on his intentions of hatching tre recognized exceptions of distraction or deliberate counter apply and we feel their answer is no neither of the distractions apply first of all the deliberate counter exception i think is that clear was this a question or as a matter of war this court i think it's a question is it's a matter of law for this court to resolve so even if there is a fact question as recurring application of the of the rule in those situations salami the court didn't go on to give guidelines as to where it might be applied outside of an employment type situation but i think here we can go on beyond  economic abortion to get the second reason in the world does not apply and that is there was not a deliberate encounter of the whole in this case i think what we have here was the defendant for the plaintiff i'm sorry responding to suddenly an emerging situation with his child running out into the roadway seems a car approaching things of the child's at risk and he suddenly runs out into the road he is recognizing its presence at that moment and he chooses to leap over it as opposed to go around or step into it step through it something like that here there's no indication that this was deliberate action by pothole and the plaintiff tries to make up the entire road but it's not the road that caused it well it's the depression at that normal condition road where the cross in the fall he said it was about two feet wide circular sixty eight inches deep that's the defect because obviously they couldn't say that it was even white tells us that on either side of it there was something else the world so this was not a deliberate encounter with  first of all the distraction principle is typically applying those situations where the you know the defendant did do something to create or cause the distraction and therefore it has reason to anticipate that type of situation this case is very similar to the facts in the sand of all case and there we have the woman who was babysitting for a young child she was out working in the front yard basically she knows that the child is gone she is fearful that the child might try to go down steps in the back of the building she then runs after the child and she too says that she was not focused on where she was going he was not focused upon a condition that she knew to be present that she had seen a million distraction and said that it was a situation where her attention was diverted by her own actions so you know whether it's a diversion or a distraction i think the result is the same it was deemed not foreseeable by the defendant that the plaintiffs would encounter this risk because of their attention being herded or being distracted by something other than because you're a condition within the purview of the defendant's this was a of open obvious analysis of this aid to the work or do the analysis and typically they say that it's not reasonably foreseeable or that the risk of injury is not reasonably foreseeable where there is an open obvious condition even if you did not look down and see the specific area that his foot ended up meeting it's unfortunate regarding the economic compulsion aspect of the deliberate count the court uses a phraseology of the fact of whether someone deliberately counts the fact of whether a distraction exists and even in determining those non issue in this case whether or not a hazard is in fact open in obvious we do invite fact questions to it to make it inappropriate for summary judgment in this case we do not dispute that there was an open audience has however if there had been disputed about the size of that for example we could just use the generic open and obvious and it's got its attendant exceptions we do employ questions and in this case those questions of fact do apply and made summary judgment inappropriate this is a case where the nature of the case has rendered the question of you need more than just a question it's a mixed question and one from a summary judgment was inappropriate going to treat cases cited by the defendant specifically starting with the whole case this is a case in which a person intentionally brought a cell phone up to their head while i was sitting stairways with a hazard that they had previously encountered in the court