that the condition of the walkway in question was open an obvious as a matter of law the dispositive issues in this appeal become one whether plaintiff was in the legal sense of the word distracted at the time  and if she was distracted whether that distraction was foreseeable to the city a sense this is an open obvious condition in that everybody agrees that it's an open obvious condition we start with the presumption that the users of the property will notice the condition appreciate any risks that the condition poses and avoid that condition this presumption is coupled with the wall that a  landowner generally need not anticipate the negligence of others for those reasons open obvious conditions such as the one in this case are not inherently dangerous however that the fact that it's open  obvious and that's presumption can be discounted if one of the limited and narrow exceptions recognized by this court apply in this case we're dealing with the the distraction exception which is set forth in common forseeable despite its obvious nature the plaintiff in this case argues that she was distracted because she was looking at a building her destination as opposed to the condition of the walkway the fifth district  agreed and i think it's important just to briefly cite from the fifth district case as to what they found to be a distraction and the fifth district in its opinion stated at the time of her for plaintiff was not looking down at the sidewalk instead she was looking toward the clinic door and steps where she was intending to enter because her attention was fixed on the clinic's entrance she did not notice the crack in the sidewalk and that was the distraction appellate court recognized the first problem with with that is that plaintiff testified that she did see the condition before she fell and and that's not been argued that she didn't see it by by the plane so the public order is wrong in that in that regard second problem is that the public court did not give any reason why the plaintiff was looking at the doorway as opposed to the condition district did not find that something caused plaintiff to look at the building or that she was required to look at the building instead they just said or or concluded that plaintiff was looking at the building instead of the condition address the open obvious issue and they tell courts said well a plaintiff could be looking a bank transactions they could be looking at for their car keys or they could be looking for their car and any of those  any of those situations qualified and met the distraction exception obviously if a plaintiff could simply say i was distracted by looking at point eight instead of at the condition doing the exception swallows the rule there would be no situation where you could invoke the open obvious doctrine because the distraction exception would always apply the only time it would apply is if the plaintiff was actually looking at the condition when she fell but the foot district didn't stop there and they went on and said not only is it simply looking away from the condition of distraction but if we can find any s of circumstances where it would be reasonably foreseeable that a plaintiff would be distracted when the distraction exception applies whether or not that actually occurred in the case and one of the examples that the appellate court gave was that a person might have gone into the building we're dealing with was it was an iconic a person could have gone into the eye clinic had i procedures performed been in there for a think of any set of circumstances where discretion may occur even though they didn't occur in the case then again the exception is going to swallow the rule because you're going to have a court being able to apply the fraction  based on events that didn't occur because of my answer your question and the proper analytical framework to resolve these kinds of cases something kind of like theory here obviously this has set up a four part task for the court to determine whether duty excess and that's an issue for the court to decide the reasonable for c believe an injury to another the recent likelihood of injury the magnitude of the burden that guar against the injury places on the to find it and the consequences of placing the burden on the defendant now those are the four plans that we talk about why cases then we also talk about open obvious and distraction condition is to determine to be open and obvious as a matter of law it affects the first two factors in that duty analysis the foreseeability of the injury and the likelihood of injury and this court has said another courts have had have  so it is deeply affects those first two factors and i have not seen a case from this quarter or any of the approach towards where a condition has been determined to be open and obvious where  distraction or deliberate encounter exception doesn't apply where duty is found to exist so i think it's of the utmost importance if it's open obvious then without the distraction exception or the deliberate encounter exception applying it's likely that there is no duty so is the distraction issue also grounded in these four elements the distraction exception affects the open obvious doctrine the presumption that a land ownership for see where the person may be injured despite the fact it's open and obvious and one of those is where you had reason to expect that somebody's attention may be distracted or that they would forget about the condition so the exceptions affected by open obvious downtrend which then affects the first two factors of the of the duty analysis so for c ability is keystone both this and distraction yes i would i would agree with that and as this court has recognized for suitability is not twenty twenty hindsight it's not everything that conceivably could have occurred which i believe is what the appellate court  found in this case in fact they i believe that they went beyond what conceivably could have her and went to hypotheticals and those cases there's no way that the distraction exception i'm alive and well in the state of illinois mr fund just to follow up on justice thomas on make sure i understand your argument what is it you're presenting to us to decide it goes beyond merely guidelines that that don't seem to be unanimous throughout the divisions of the appellate court but i think those guidelines are that this court could provide guidelines so that we can harmonize precedents so that there are no differences between the divisions of the appellate court and with regard to the distraction exception and specifically the fifth district you see distraction is not is not relevant to whether it was foreseeable whether distraction was forseeable and this courts said otherwise and even the fifth district in wiggle nimby or in court which is a case that the defendant relied on in the city relied on the fictitious said you must consider so we've gone from we must consider it to you don't consider it at all and i think of the this court has the power to to provide guidelines to the to the appellate courts and divisions of quote so that this is the distraction exception is interpreted uniform now of course it's a case by case basis but i certainly think that that least within the fifth district you can see that those guidelines would be helpful and going back to the fifth district hypotheticals if you look at and this touches on just the scope by its question another case that predates the woman case the which is the national supermarkets it's the fifth district appellate court case the appellate court in that case recognize that there was no evidence that the defendant or the plaintiff was distracted and in their however they found the culprit found that the distraction exception applied in doing so the coke or stated that plaintiff didn't say he wasn't distracted and went on to say that plaintiff could have forgotten about the slippery condition and went on further to get to state that plaintiff might have been distracted by talking somebody at the time of his accident once again we're getting into the hypotheticals where you don't even need evidence to show that there was a distraction in order to apply the distraction exception the guidelines which i mentioned they come from not only this court's decisions and warding deeper but also the appellate court opinions interpret in warton deeper and some of those guidelines are whether the care whether distraction was involuntary or whether it was completely self created by the plaintiff for example situations like looking for a child answering a cell phone looking at a car recognized that the plaintiff in stepping from a ladder over an elevated billboard to a walk around had to concentrate on those both feet instead of worrying about overhead wire pope courts have also looked at whether the defendant the property owner caused or contributed to the distraction and once again as stated earlier deburred this court's decision specifically recognizes that and so does the fifth district decision and little if you apply all these guidelines that to the case of bar and  of the decisions of this court and and they polled other divisions of the poll court you see that none of them apply none of these guidelines support the fact that for the whole being of the whole court that plaintiff was distracted at the time of her accident but it was not required to look anywhere else the distraction was completely completely within  control and the landowner of the city didn't cause or contribute to a distraction in any way shape or form and if you look through the rest of the facts of this case you'll see that it's clearly not a distraction and if it is a distraction it's not one that can be said to be foreseeable to the city it is the fact that the higher planes and any place else i don't believe that notice of the condition does not change the fact that an open and obvious can condition the presumption that it doesn't change the presumption that somebody will see it recognize it and avoid it and in fact if you go through almost all the cases cited by name of the parties including the case is decided by this court you'll see that in all those cases the property owner had notice of the condition and ward wal mart had our kmart had notice of the polls outside of the property in american national the sign owner had noticed that the the walk rail was near the the electric wires and all the why the pole court's decision should be reversed is that it puts stock in that the city had notice of this defect now for going down the rhine to proving negligence then notice comes into play but when determining duty it does not foreseeability of injury likelihood of injury you'll see that those factors do not did not weigh in favor of finding a duty and for those reasons we believe the decision of the court should be frustrated i represent an eighty year old lady who has suffered the harshest remedy that a civil litigation can endure in this state the trial court  did not give us the opportunity to present dead case to a jury but also frustrated because my opponent has it under tone in both his brief and his reply brief that there is something about this decision of the fifth district justice case that's sort of off the reservation and not in keeping with the law of illinois the law of this court and its prior decisions i would respectfully suggest to you that nothing could be further from the truth the basis that i make that statement to you is the facts that this case presents you know there's a lot of cases in the slips and falls in the distraction exception that people were doing something in the area that would create even a de minimus defect in the sidewalk to be a hazard to them they would be looking for their keys reviewing their transactions looking at their check books that sort of thing likely this occur in that area yesterday but even if even that even factually it amounts to the nearest case talks about leaving the bank and being reasonable to look at your papers here or here plaintiff was arriving at the clinic right not leaving after a procedure where you might have papers and you might be thinking about it and  least pointed out the point it wasn't complaining about communicability the sea upon arrival nor did she say she was distracted because her eyes were bothering her so and and that they have a heavy reliance on a case that i'm  blind certainly distinguishable and i with the move that may be on the facts as distinguished from justice thomas what this woman was doing was looking at the door in the steps that she was going to go through now that's no less reasonable than reviewing your transactions as you're coming outside of a bank and looking at what you have done i mean the distinction is one i would respectfully suggest is that without a difference looking at when you're going rather than looking at what you've done it's looking at something that should be foreseen and in fact this court has recognized in several different cases that you can't look in two places at once which is about twenty five feet from the door well the redwood feet are not the end of the record the photographs i guess speak for themselves that's not right there and it's not real far it's it's just i can't i don't know what the twenty five feet right or wrong valid concern and i think one of the things that you have to look at is where this is located what's around it all you know metal for little or no sidewalk they didn't lead somewhere and you had a bird go over or you had a dog go by something like that to took your attention away that there would be no reason the city or the landowner would proceed now that may be a distraction but it may not be recognized as a legal description distraction i think the key here that differentiates this from a lot of the cases is one they have transitory occurrences like where the fan is in a room or something like that what point something out also please and you know i've brought many times that maybe i made a mistake in the trial court by acknowledging that this was an open and obvious condition that's troubled me to this day i don't know how i could have didn't do better and maybe i should've and so this is an open and obvious condition and it's acknowledged but this is a you need to open an obvious condition i respectfully suggest to you because it and everyone that has seen this open an obvious condition has said that it was hazardous that's why these all have to be taken on their own facts and by that i mean the people who own the eye clinic years before call the city ask the city to take down that tree offered to pay for to their own expense because of the hazard to get created so the people there that saw thought it was cancerous i took the deposition of a public works director and this is in several places in the brief but that public works director for the city of some truly has said yes looking at these photographs that is a hazardous sidewalk we understand that people don't always look down and yes if the city had known about this and did nothing they were negligent and they fixed it the next day or within a very short time thereafter and i disagree fung when he says that those factories are not properly taken into account in whether or not a duty should be recognised so you're saying you're saying that because i would offer the thought this way if i could just as titus mentioned this interplay between the floor factor analysis and the distraction exception  in three forty three a f of the restatement i mean the statement uses the term can reasonably be anticipated if i recall correctly now i don't see that very different in foreseeable i think there's a lot of overlap there i don't see how you couldn't say that but let's look at the other factors that a court should consider in determining the existence of duty what we're talking about the consequences of imposing the duty we're talking about the burden and we're talking about the risk of likelihood of injury now when you evaluate those factors in light of the fact that the adjacent landowner has asked about this in light of what fed did everyone that has seen it has said it is being injuries well frankly the burden seems much more minimal and that might convert the entire downtown street comrie into a very big distraction well let's look at it this way and i think this is a great opportunity for this court to consider this law  if you have a public sidewalk and it's in front of one of the great department stores that are here could have a department store windows and it has a large defect and the city of chicago says we don't have to do anything about that defect it's open an audience and they say world people will be looking in the store windows but those store windows are our store windows we didn't create them so it's not our fault that they don't look down where they're going is that the right policy and that's not turning the entire downtown into a distraction it is recognizing the fact that people are looking at storm windows better be better like in the city shrug their miles and miles and it is the fact that she's looking at the go away one would not be a distraction you know is much harder because most of the cases say you know the person says they were not distracted and that's a different situation  i think that's something the court can clarify here but if you had a sidewalk where it was in a park along the roadway where there is nothing that can't be sense if you look at any one of these cases there is an element of self created distraction i mean i don't know how you can walk out of the k mart store  you'd like us to that perhaps the the ability to use a sidewalk might be taken away by the state because of the liability that they would have they would definitely say well why should we we're  court and that is the jury if you find but there is a duty that does not mean under the circumstances that exist that a jury is going to agree that there's a breach of that created that situation has knowledge of a of it or whether or not it would be foreseeable that somebody would get her as a result of the opening obvious condition w man right under our case law it's an open obvious condition you may get her you walk in your own risk here is go home right you have to agree palmer the judge i think i would agree with right but now you're asking us with respect to the exception of the open in the us you're asking us to make a determination whether or not the defendant would there be some foreseeability that certainly under your analysis foreseeable that somebody walking into a door would look at the door and therefore be distracted but it wouldn't be for seeable if a vulture came down  reason at all to put this to anticipate should serve as a legal distraction and those things that clearly present because as i said before i'm i think we're out of the four corners of the of the duty looking at the plane and whether it was reasonable for the plane to be distracted when they came to the open an obvious condition we're now looking at with the defendant knows we're looking at with the plane or no there's already been a determination that if it's that that individual's attention would be distracted momentarily i mean that's clearly under warden all the other cases built into it but we always look to whether it was reasonable for the plane to be destr look down she was looking forward and she tripped over the map it's the same concept and you know if it goes too far again i really think that's what the trier of fact about the court and i mean you can't say you can you're you're the supreme court but you can't say that someone will be looking forward as they're walking i mean that is what the human condition requires many courts have said you don't right the whole analysis that we're talking about here is that it should be anticipated that a result person is innocent well i'm not walking that line with it in this other idea of distraction but you seem to be suggesting that no matter how extreme the hazard is that the fact that someone could be thinking about something else or looking somewhere else now means that they don't have a duty to protect themselves is that what you're saying no really briefly like to address some of the points raised by the plaintiff first the issue that i cite played any role in this case whatsoever is contrary to the facts of the case the plaintiff said she saw the defect she saw the condition plaintiff said she saw the condition on the nine times she visited the the clinic on in the three months preceding interaction is well it was not and it was never this case has never been about whether plaintiffs couldn't see the condition or had some kind of eyesight problem the hairs cases as as brought up by justice thomas the harris case has absolutely nothing to do with the open obvious doctrine because it has absolutely nothing to do with the open and obvious doctrine it doesn't start with the presumption that the person will see the defect appreciate the risks and avoid it and in fact the question is was in harris was whether the defect was so small that it was not actionable not not that it was open and obvious and should have been seen and the the second district in that case was not looking at looking at your keys looking at at the car as a distraction exception  and with all the roles of cases including this court's cases the fact that the public order trial is harris is as a little bit confusing with regard to the fact that the properties are interim director of public works testified that he believed the condition was dangerous and that people working at the clinic believe the condition was dangerous and that goes against the presumption of the open obvious doctrine and that is that it's not dangerous because somebody will see it for shit the risks and avoid it the director of public works is not a not a court he's not a lawyer he doesn't understand that open obvious means that the law it not to be dangerous it only becomes dangerous if the landowner can't force see a distraction occurring and going to the self created distractions it's true that each case may have to some degree and element of self creation but it's not completely and totally one hundred percent within the plaintiff's control and i wonder if we change the facts and some of this court's cases such as ward where the where the plaintiffs walking out a  a solid door couldn't see the post on the other side that rowing nineteen inches away and was carrying a mirror at that was sold to him by the defendant get rid of the m and assume that the plaintiff wasn't carrying a thing make those doors clear word he could have seen easily seen the post put those posts not nineteen inches away from the the door but twenty five feet away with this  impose the requirement that the land owner think of anything they conceivably could happen so in that situation i would say that the distraction exception when applying but you can look through the other guidelines it was the was the plaintiff required to to be distracted were required to focus their attention somewhere else that's not the case here on the although the whole court raise that rule and it's it's opinion it never said well the plaintiff had to look at the doorway or else she would have been injured and therefore she was distracted and we know from the facts of this case and pictures that the plaintiff didn't have to look at the doorway when she approached the condition of the property she started out from the street everything was in her view she saw the building she saw the condition of the property have plenty of time to chart a course to avoid injury i also think gleaning from the cases you also look at the context in most of the construction cases that have been for this case this court and another public courts there has been found that distraction exception did apply because it was reasonably foreseeable to the owner of the property the plaintiff would have been distracted for example one and deeper two persons working out walking out horrible bathroom and the breeze being thrown on on his head or at least he thinks that debris may be thrown being thrown on his head and clifford which was another case relied on by the appellate court you have a situation where a wall fell on somebody now context of of the field pretty much in agreement then with mr brace that we look at these cases in their own facts the only place used whether or not the landowner or sloan saw that whatever this so called distraction was for seeable or not and where he did we differ is he thinks that the landowner should have seen that it's for guidelines that courts can follow but in this case if you apply any of those guidelines and if you look at the facts there is not one guideline not one fact that points to  the reasonableness of the plaintiff's actions go to contributory net to contributory negligence and on down the road whereas the distraction exception we're focusing on the defendant and what what the defendant or the property owner had reason to forsee and but we go back to the presumption in when a when a condition is determined to be open and obvious and that is that you see it you appreciate the risks and avoid it so we're operating under that presumption that that somebody will not distract themselves as they did in this case that they won't be distracted by completely self created distraction because they're going to see the defect and they're not going to look away it's it's it's at least a mere inattentiveness in this case and other cases suggested or other scenarios suggested by the appellate court you see a defect a condition it's open obvious you know you push it the wrist and then you decide to look for your car keys look for your car look for doorway it no i don't think you would in fact there is that there is an appellate court case name scaping me where those exact facts the plaintiff said you know i was distracted because i was thinking about a test i was thinking about things i had to do and the the whole court and that decision i believe was whole said that the the exception would subsume the rule if if somebody just thinking about something and was distracted simpson the rule which is exactly what has happened here if we have to see your property owners have to first see the negligence of a plaintiff or somebody who  consciously ignores an open obvious condition then the open obvious doctoring it is has been destroyed