201 8 IL App (1st) 162744

No. 1

- 16

- 2744

STEVEN A. HENDERSON, ) Plaintiff -Appell ant , ) )

v. ) ) LOFTS AT LAKE ARLINGTON TOWNE ) CONDOMINIUM ASSOCIATION, BUILDING ) MAINTENANCE SY S TEMS, INC

. , PROPERTY ) SPECIALISTS, INC. , ) Defendant s-Appell ee s, ) ) (Karen Popke, Third- Party Defendant -Appellee ). ) SIXTH DIVISION MARCH 16, 2018

Appeal from the Circuit Court of Cook County.

No. 11 L 63053

Honorable Thomas D. Roti, Judge Presiding.

JUSTICE CUNNINGHAM deli vered the judgment of the court, with opinion. Justices Connors and Delort concurred in the judgment and opinion.

O PINION
¶ 1 Plaintiff

- appellant , Steven A. Henderson , challenges an order of the circuit court of Cook County dismissing his negligence action upon granting summary judgment to the defendants , which consist of the Lofts at Lake Arlington Town e Condominium Association (Lofts ) , Pr o perty Specialists, Inc., (PSI) and Building Maintenance Systems, Inc. (BMS). In t he same order , the trial court also granted summary judgment dismissing BMS’s contribution claim against third

party defendant Karen Popke. For the following reasons, we reverse the order of the circuit court1-16-2744

of Cook County to the extent it granted summary judgment to the defendants, b ut we affirm the

circuit court’s order to the extent it dismissed BMS’ s contribution claim against Popke
. ¶ 2 BACKGROUND
¶ 3 The Lofts is an association of owners of condominium units in Arlington Heights,

Illinois. PSI serves as the Lofts’ property manager. BMS is an independent contractor that was hired by Lofts to perform work in 2008 that allegedly caused Henderson to be injured in a slip

and

- fall incident. At all relevant time s , Henderson resided with Popke, his girlfriend, at a condominium unit owned by Popke (the condominium), which was part of the Lofts.
¶ 4 I n September 2011, Henderson fil ed a complaint pleading negligence counts against the

Lofts , PSI, and BMS

. Henderson alleged that, when he attempted to enter the condominium on the evening of October 2, 2009 , he slipped and fell on a “stoop and stairs” just outside the

condominium entrance. He sustained severe inj ury to his left ankle and knee, which led to multiple surgeries.
¶ 5 The complaint alleged that the “stoop and stairs” w ere “common property owned, operated and managed by” the Lofts. Henderson pleaded that the Lofts owed a common law duty

to maintain this area , both under the common law and pursuant to section 18.4 of the Condominium Property Act (Act) (765 ILCS 605/18.4 (a) (West 2010) (providing that the “powers and duties of the board of man a gers” include providing for the “care, upkeep, maintenance, replacement and improvement of the common elements”)

. Henderson further alleged that the Lofts owed duties to maintain an d repair the “Common Elements ” under the

Lofts’ declaration and bylaws.

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¶ 6 The complaint pleaded that PSI was hired by the Lofts to “maintain the common areas including the stairs and stoop ” and that BMS was hired by the Lofts , “either directly or through [PSI] to apply a special concrete epoxy sealant and co

- efficient of friction to the stoop and

stairs .” H enderson alleged that the defendants received but failed to respond to “ numerous compla ints” from Popke and Henderson “regarding the sl ippery condition of the stoop and

stairs ” before his October 2009 injury

. The compl aint allege d that the defendants negligently
failed to, inter alia , maintain and inspect the proper ty or to warn of the dangerous condition , proximate ly causing his injuries

. ¶ 7 On October 25, 2011, the Lofts and PSI jointly filed an answer, admitting that the Lofts “owns the subject stairs and stoop” at Popke’s condominium but denying any negligence

. They

also filed affirmative defenses, including assertions that Henderson fail ed to use reasona ble care
and “[f] ailed to avoid the obvious condition of the stoop and stair .”
¶ 8 On April 24, 2012, the Lofts and PSI filed a counter claim for contribution against BMI , alleging that the Lofts “enga g ed [BMI] to apply a concrete epoxy sealant” to cert ain common
elements . The c ounter claim alleged that BMI “ failed to properly apply the ep o xy con c re te

se alant so as to provide a sufficient cohesion of f riction .”
¶ 9 In June 2012, BMS filed an answer denying allegations of liability. As an exhibit to its

answer, BMS submitted a proposal dated May 21, 2008, which was directed to George Pierce of

P SI. BMI ’s proposal quoted price s for “ the installation of an epoxy coating on the front entry steps and stoops” of several condominium addresses , including a price quote of $848 for work at Popke’s condominium. Unde r the head ing “Acceptance of Proposal,” Pierce signed t he proposal

as “a gent for Lofts” on May 22, 2008. In addition to its answer, BMS pleaded an affirmative

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defense of “comparative negligence” in which it asse rted that Henderson “f ailed to avoid an open

and obvious hazard.”
¶ 10 In August 2013, BMS filed a third

- party complaint for contribution against Popke

. BMS

alle ged tha t Popke owed a duty to maintain the “front stoop and stairs” in a reasonably safe

cond ition for invitees , citing provisions of the Lofts’ declaration an d bylaws concerning

“Limited Common Elements.” BMS alleged that Popke negligently breached her duty by,

inter alia , permi tting a dangerous co ndition to remain on the premises , which proximately caused Henderson’s injuries

. BMS thus pleaded “If [Henderson] prevai ls against [BMS] then
[BMS] is entitle d to receive contr ibution” from Popke “based on the percentage to which the liability of fault of Karen Po pke, caused *** [Henderson’s] injuries or d am ages pursuant to the

Joint To rtfeasors Contribution Act .”
¶ 11 In February 2014, Popke moved to dismiss B MS’s third

- party co mplaint. She argued that only the Lofts had a duty to maintain and repair the area where H enderson slipped because it fell

within the definition of “Common E lements ” under the Lofts’ declaration and bylaws

. BMS’ s response contended that the area fell within the definition of “Limited Common Elements” under other provi sions , such that Popke maintained a duty of care. On October 3, 2014, t he trial court denied Popke’s motion to dis miss the third

- party complaint

. ¶ 12 The parties engaged in discovery, including depositions of Henderson and Popke

. Both

testified that Henderson had resided at the condom inium f or a number of years, and both

described two entrances to the condominium : a front entrance and a garage entrance. The front entrance area includes a sidewalk leading from the driveway to a single step and a front porch, which abuts the front door. The condominium was also accessible through an entrance in an

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adjace nt garage. Henderson testified that he used the front entrance the “majority” of th e time, and that he entered or exited the condominium on a daily basis

. Asked about th e garage entrance, Henderson testified, “It’s a tight ar ea. We got a lot of stuff in our garage.”
¶ 13 Henderson recalled that , before his injury, he learned that the Lofts hired a maintenance company to apply epoxy to the front step of the condominium . A fter the epoxy treatment, he

noticed the front step was “real slippery” when wet. Henderson recalled that he slipped at the site

o n two prior occasions before his October 2009 injury. A fter the first incident, he told Popke that the front porch was “ real slippery whe n wet” and that he was con c er n ed Popke’s mother was “going to break her hip.” Popke told him that she would “make a complaint.”
¶ 14 Henderson testified about a second incident where “[i] t was we t, and I slipped” but

“ caught myself .” He recalled that he and Popke “ walked over, and I know we tal k ed to George
[Pierce] .” T hey told Pierce that the “front steps are real slipper y,” and Pierce said he would “look

into it.” Henderson acknowledged that, prior to the October 2009 incident, he was generally aware that the step and porch were slippery when wet but that “[i]t wasn’t etched in my mind.”
¶ 15 O n the evening of the incident, Henderson drove to the condominium by himself after attending a football game with his daughter. Popke was out of town at that time. He recalled that

it wa s raining. When asked how hard the rain was, he answered , “Raining enough I wanted t o get
out of the rain. I don’t know how hard.” Asked if he “ knew that the step was going to be wet ”
when he arrived at the condominium, Henderson testified , “I didn’t think about it, to tell you the

truth.” Henderson recalled , “I left my car, came around the car, stepped on the front step. My foot slid into the upper riser when I was coming across. My foot slip ped, and I fell back.” He

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found himself “laying o n the ground .” He fel t pain in his lower left leg and was unable to stand up, so he “crawled ” into the condominium. The n ext day, he drove himself to a hospital.
¶ 16 At her deposition, Popke testified that Henderson resided with her at the condominium

since 2 005 or 2006. Sh e testified that the Lofts maintains common a reas of the condominiums , including driveways and the “ exterior or the porches.”
¶ 17 Popke testified that, prior to Henderson’s incident, she went to Pierce’s office to complain that “once they put this epoxy stuff down, it was slippery; they needed to fix it.” She

test ified that she complained in 2008, “right after that epoxy w as placed.” She recalled, “I said, ‘George, whatever you guys did to my front stoop is very slippery , dangerous. ’ ” She testif ied that she complained to Pierce “about three or four times” before Henderson’s October 2009

incident. After her second complaint, Pierce “said he wou l d get somebo d y out there , ” and Popke

recalled that some work was done , but she testified that “it was not fixed .” She stated that she again complained to Pierce and told him “whatever you guys d id, it is still slippery.”
¶ 18 Asked about the garage, Popke testifie d that “it get s very mess y, and sometimes, no, yo u
can’t wal k in there sometimes.” She agreed t hat she primarily used the front entrance to the

condominium , as it was easier than “having to squeeze through the garage and the car on the side of the garage.” Popke testified that Henderson also typically used the front entrance. ¶ 19 Fo llowing Henderson’s injury, Popke wrote a letter to the Lofts, dated October 22, 2009

. The letter stated “In 2008 our front porch and stairs were redone with a silicon covering” and that this “caused the porch and stairs to be slippery.” Popke wrote that “I brought this to the attention of the office at Lake Arlington when it was done. *** The office had the company come out to resurface it but they did not correct the problem and it was still dangerous to walk

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on. I again told the office after the first resurface but no one has come out to resu r face again in the last year.” She also wrote , “All of this has resulted in my boyfriend being injured on t he porch on October 2, 2009.”
¶ 20 George Pierce, an employee of PSI, was deposed. Pierce stated that he is the property manager for the Lofts and that he has an “on

- site” office. Pierce agreed that the porch and steps leading to the front entrance of Popke’s condominium were common ele ments and agreed that

common elements “are the res pons ibility of the association.” He also agreed that PSI managed

the maintenance of common areas.
¶ 21 Pierce testified that the Lofts’ b oard of directors (board) decides which contractors are hired to perform maintenance

. Pierce recalled recommending to the bo ard that a cont ractor
review the condition of the Lofts’ concrete sidewalks and stoops. As a result, i n 2008, BMS

“walked the property and looked at each sidewalk and stoop.” BMS suggested that epoxy “would be a good application for the stoops that have minor cracks” and “would give the front of the building a nice look.” Pierce presented the May 2008 BMS proposal to the board for approval. Pierce acknowledged that he signed the proposal on behalf of the Lof ts and that t he work was

per formed sometime later in 2008.
¶ 22 Pierce denied that he received any comp laints from Hender son or Popke about the epoxy

work before Henderson’s October 2009 incident

. However, Pierce acknowledged that, shortl y
after t he 2008 epoxy work, it came to his attention that “there was a problem with the stoops.”

Pierce testified “ right after the work was done,” he “got phone calls *** from homeowners stating that there was an issue with sand coming off the coating, and their s toops were either

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shiny or seemed slippery.” Pie rce testified that he verbally relay ed th ese complaints to BMS and

that he had ask ed BMS “to check all the stoops.”
¶ 23 Pierce was asked if he knew “why an epoxy treatment of concret e stoop could become too slippery after the work was done.” He testified:
“My understanding is *** that the application of the epo xy an d sand had to be done in a specific time fram e for the sand *** to
adher e to the epoxy proper l y, and this was not being done. And this is why whe n it rained or they wen t and s w ept their ba l con y or
their fron t stoop, the s and was comi n g off becau se it had not adhered to the epoxy properl y.”

Pierce stated that he “found out what the problem was from BMS.”
¶ 24 Jay Ma ynor, the president of BMS , was deposed. He testified that BMS stopped doing business during 2012

. Maynor was asked about the May 2008 BMS proposal for ep oxy coating

at the Lofts. Ma y nor acknowledged that some tim e after the work was performed in 2008 , he was

notified by P ie rc e of complai nts of slipperiness

. Ma y nor testified that he inspected 10 to 15

residences at the Lofts , including Popke’s residence. He stated that he “ walked up to each location, just looked at it to see if I saw quartz crystals and grit apparent on the surface. I put my
foot on it. I’d walk on it. I’d try an d drag my boot and, *** see if it was slippery to me or if it had

texture.” Ma y nor stated that “none se emed to even be remotely slippery ” but acknowledge d that

he did not run wat er over the steps

. Maynor was unclear as to when this occurred. At one point

he testifie d that he inspected only after rec eiving notice of Henderson’s Oc tober 2009 injury

.

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However, he later testified that he could not “ remember exactly” if he visited Po p ke’s residence

before October 2009.
¶ 25 On December 14, 2015, Popke filed a motion for summary judgment seeking dismissal of

BMS’ s contribution claim. Popke argued that she “did not owe a duty to [Henderson] since the subject condition was open and obvious.” In turn, Popke argu ed that she could not be held liable

to BMS for contribution.
¶ 26 On F ebruary 4, 2016, the Lofts and PSI jointly filed a motion for summary judgment,

wh ich argued that they had no duty to Henderson because the epoxy

- coated step “presented an

open- and

- obvious ris k o f falling when the step was wet” that was “ well known” to him. The

motion c laimed that Henderson’s testimony established that , since it was raini ng at the time of the incident, “he knew from prior experience that the step would be slippery .” They also a rgued that Henderson “could enter his residence safely through the garage” but “chose not to do so.” The motion acknowledged a “forgetfulness or di straction” exception to the “open and obvious”

doctrine but claimed there wa s no evidence that Henderson was distracted or had forgotten that the step was slippery when wet. The motion also argued that the “ deliberate encounter ” exception to the “open and obvious” doctrine did n ot apply because Henderson “ had a safe

means of entering” through the garage but chose to proceed to the front entrance. Accordingly, the Lofts and PSI argued that they “did not owe a duty *** to protect him from the risk of falling posed by the wet, epoxy- coated step ,” precluding their negligence liability

. ¶ 27 On May 27, 2016, BMS also moved for summar y judgment against Henderson

. Simila r to the Lofts and PSI, BMS based its motion on the “open

- and -obvious” doctrine, arguing that Henderson “was aware of the risk that the step posed when wet, he was not distracted ***, and

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there was an available alternate means of entry to the subject premise s that the plaintiff chose not

to utilize.” BMS argued that a finding tha t the condition was “ open and obvious ” should apply

“ to all parties accused of negligence, including BMS.”
¶ 28 On the same date , BMS responded to Popke’s motion for summary judgment with
respect to BMS’ s contribution claim against her. BMS argued that Popke’s motion should be

denied because she owe d a duty to “maintain her front porch in a reasonably safe condition” and “to prove a safe means of ingress and egress to her home.”
¶ 29 On September 16, 2016, the tria l court entered an order granting “the various Defendants’ Motions [for] Summary Judgment” and dismissing the case with prejudice. 1 The trial court found that the “open and obv ious rule” applied, becau s e Henderson’s deposition testimony showed that

he “acknowledged the nature of the danger, that he knew of the danger and that h e was concerned about the danger.” The court found that “the open and obviousness of the front p orch slipp er y condition has been established.”
¶ 30 The trial court further found that the “deliberate encounter exception” to the open and obvious doctrine did not apply , citing Henderson’s testimony tha t he could enter through the

garage but did not do so “because there was a lot of ‘stuff’ in the garage.” The court concluded : “it is apparent that [Henderson and Popke] knew of the danger that the front porch presented and

1 The opening paragraph of the trial court’s order indicates that it pertains to all pending motions, including Popke’s motion for summary judgment regarding BMS’S contribution claim: “This Opinion and Order concerns the Ne gligence claim of Plaintiff *** aga inst defendants [Lofts]; *** [BMS]; and [PSI.] It also concerns the contribution claim of BMS against [Popke]. All defendants have moved for Summary Judgment ***. For the reasons stated in the following Opinion, said Motions are granted.” However, the rema inder of the order does not differentiate between the various motions.

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for some period of time, decided to do nothing about it nor try and make the gar a ge more accessible. Rather they decided to take a chance whe n it rained and use the slippery steps.”
¶ 31 The trial court’s order concluded that “the various Defendants’ Motio ns [for] Summary Judgment *** are granted” and dismissed the action with prejudice. The order did not otherwise

di fferentiate betw een the various pending motions and did not separate ly mention BMS’s contribution claim against Popke.
¶ 32 On October 14, 2016, Henderson filed a timely notice of appeal from the September 16, 2016 order, affording this court jurisdiction under Illinois Supreme Court Rule 303(a) (eff. Ja n

. 1, 2015).
¶ 33 ANALYSIS
¶ 34 On appeal, Henderson asserts a number of arguments for reversal of the entry of summary judgment in favor of t he defendants. Among these, he claims that the trial court erred in finding that the defendants owed him no duty under the “open and obvious” doctrine. He claims “the dangerous condition of the stoop and step in this case was not open and obvious

because n either the condition itself nor the risk was apparent to a reasonable person.” He also relies heavily on our supreme court’s decision in Ward v. K Mart Corp

. , 136 Ill. 2d 132 (1990) , for the propo sition that the doctrine will not relieve a defendant of its dut y to protect against a

“ known” or “obvious” condition, if it is reasonably foreseeable that a plaintiff could forget the

condition. He argues that it was reaso nably foreseeable that he “ would be injured walking on an epoxy coated step that does not appear to be dangerous, at night” and in the rain. Henderson acknowledges his testimony that he slipped twice before at the same location but also notes his

testi mony that the condition of the stoop was not “etched” in his mind. Thus, he contends that the

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defendants “ could certainly anticipate that [Henderson] would momentarily forget that the epoxy step and stoop was slippery when wet.”
¶ 35 Sepa rately, Henderson argues that a finding of an “open and obvious” condition would not automatically relieve the defe ndants’ common law duty of care and that the trial court failed to properly weigh the relevant factors in the duty analysis. Henderson independently argues that

BMS cannot benefit fro m the open and obvious d octrine because BMS did not own, occupy, or control the property.
¶ 36 Furthermore, apart from any common law duty , Henderson urges that the Lofts were obligated to maintain the stoop and front step as “common elements” pursuant to s ection 18.4 (a)

of the Act (765 ILCS 605/18.4(a) (West 2010 )), as well as under the Lofts’ condominium

declaration

. Henderson also asserts that PSI independently owed a duty of care under its property
management contract with the Lofts and that BMS had a duty under its proposal to install the epoxy coating “ so that the step and stoop was not u nreasonably slippery or dangerous when

wet.”
¶ 37 We begin our analysis with the applicable standard of review upon summary judgment.

“Summa r y judgment is appropri ate ‘if the pleadings, depositions , and admission s on file, *** show that there is no genuine issu e as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ [Citations.] In determining wheth er the moving party is entitled to summary judgme nt, the cour t must construe the plea dings and evidentiary material in the

record st r ic tly against the moving party.” Morrissey v. Arlington Park Race c ourse, LLC , 404 Ill. App. 3d 711, 724 (2010).

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¶ 38 “In a negligence action, th e plaintiff must p lead and prove the existence of a duty owed by the defendant to the p l aint iff, a breach of that duty, and injury proximate ly resulting from the

breach. ” Bruns v. City of Centralia , 2014 IL 116998, ¶ 12.
“Whether a duty exists is a question of law for the court to decide.
[Citation.] ‘In the absence of a showing from which the court could infer the existence of a duty, no recovery by the plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper.’ [Citation.] We review summary judgment rulings de novo .” Id. ¶ 13.
¶ 39 “In resolving whether a duty exists, we ask ‘whether defendant and plaintiff s tood in such a relationship to one another that the law imposed upon defendant an obli g ation of rea sonable conduct for the benefit of pl aintiff.’ [Citation.] Four factors guide our duty analysis: (1) the reasonable foreseeability of the injury ; (2) the likelihood of the injury , (3) the magnitude of the burden of guarding against the injury ; and (4) the consequences of placi ng that burden on the

defendant. [Citations.] The weight to b e accorded these factors depen d s upon the circumstances of a given case. ” Id. ¶ 14.
¶ 40 In this case, the trial court premised its grant of su mmary judgment to all defendants upon

the “open and obvious doctrine,” which is “ an except ion to the gen era l duty of care owed by a

landowner.” Park v. Northeast Illinois Regional Commuter R.R. Corp. , 2011 IL App ( 1st ) 101283, ¶ 12. As stated by our supreme court, “ persons who own, occupy, or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.” Bucheleres v. Chicago Park District , 171 Ill.

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2d 435, 447 -48 (1996). “ In cases involving obvious and common conditions, such as fire, height,
and bodies of water, t he law generally assumes that person s who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself give s caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risks.” Id. at 448. For example, in Buchereles , our supreme court held that the doctrine shielded the Chicago Park District from liability to individuals who dove into Lake Michigan, since the lake, “as a large body of water *** presents open and obvious risks to lakefront patrons who dive from concrete seawalls into the lake.” Id. at
455-56.
¶ 41 However, “[t] he existence of an open or obvious dange r is not an automatic bar to finding a legal duty on the part of the landowner. [Citation.] Rather, the existence of a duty in the face of a known or obvious condition is subject to the same analysis of a duty as is necessary in every

claim o f negligen ce,” requiring analysis of the same four duty fa c tors

. Park , 2011 IL App ( 1st ) 101283, ¶ 13; see also Buchel e res , 171 Ill. 2d at 456 ( “Having affirmed the applicability of the

open and obvious doctrine to the case at bar, we complete the analysis of duty by assessing the effect the open and obvious doctrine has on the t raditional factor s that are relevant to the court s ’ imposi tion of a duty.”) . Spe cifically, the open and obvious doctrine “implicates the first two” of

the four factors of the duty a nalysis: the likelihoo d of injury and foreseeability. Park , 2011 IL App (1st) 101283, ¶13; Bucheleres , 171 Ill. 2d at 456.
¶ 42 Furthermore , our courts also recognize two specific excepti ons to the open and obvious

doctrine , which “ make provision for cases in which ‘the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstandi ng

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its known or obvious danger.’ ” Bruns , 2014 IL 116998 , ¶ 20 (quoting Restatement (Second) of

Torts § 343A cmt. f , at 220 (1965)). Our supreme court explained:
“Illinois law recognizes two such exceptions: the ‘distraction exception,’ and the ‘deliberate encounter exception.’ [Citations.] The distraction exception applies ‘ “ where the possessor [of land]

has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. ” ’ Sollami [ v.
Eaton ], 201 Ill. 2d [1,] 15 (2002) (quoting Restatement (Second) of

Torts § 343A cmt. f, at 220 (1965) ). The deliberat e encounter exception applies ‘ “ where the possessor [of land] has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. ” ’ Id. (quoting Restatement (Second) of Torts § 343A cmt. f, at 220
(1965)).” Bruns , 2014 IL 116998, ¶ 20.
¶ 43 In this case, we note that the trial court ’s order considered only the second of these two exceptions to the open and obvious rule, when it concluded that the “deliberate encounter exception” did not a pply. The trial court did not discuss the first exception, which has been

called the “ ‘forgetfulness or distraction’ exception to the general rule of no liability for open and

obvious conditions.” Buch eleres , 171 Ill. 2d at 451. This exception is exemplified by Ward , 136

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Ill. 2d 132. As the plaintiff relies heavily on Ward , which we fi nd to be instructive, we review

that decision in detail.
¶ 44 The Ward plaintiff was injured shortly after he purchased a large mirror at the

def endant’s department store. Id. at 138. As he exited the store, he walked into one of two five

foot- tall concrete post s just outside the customer entrance ; the posts were “presumably intended to protect the doorway from damage *** by backing or parked vehicles.” Id. at 135 -36. The plaintiff acknowledged that, when he entered the store , he walked past and “[s]ubconsciously”

noticed the posts. Id. at 137. However, the p laintiff testified that “he could not see the post as he exited the store because the mirror” that he was carrying “blocked his view.” Id. at 138.
¶ 45 A fter trial, a jury found for the plaintiff and awarded dama ges but also fou nd the plaintiff

was 20% comparatively negligent. Id. at 139. The circuit court entered judgment for the

defendant not w ithstanding the verdict, concluding that the defendant had no duty to protect the plaintiff from “ the risk of co lliding with the post.” Id. at 135. The appellate court affirmed, finding that the defendant “owed no duty to plaintiff *** because defendant could not reasonably have been expected to foresee that plain tiff *** would fail to see or remember the post, which was an obvious condition on defendant’s premises , and which plaintiff had previously

encountered.” Id

. ¶ 46 On appeal, the supreme court addressed “ the validity of the ‘known’ or ‘obvious’ risk principle.” Id. at 145. The court recognized that the “traditional rule *** that an owner or occupier of land has no duty under any circumstances to protect entrants from conditi ons on his

land of which the ent r an t know s and realizes the risk or which are obvious , has fallen under

harsh c riticism. ” Id. at 146. The Ward court specifically rejected a “ per se rule that under no

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circumstances does the defendant’s duty of reasonable care extend to conditions which may be

lab e led ‘open and obvious’ or of which the plaintiff is in some general sense ‘aware.’ ” Id. at
147. ( “A ttempting to dispose of litigation by merely invoking such relative and imprecise characterizations as ‘known’ or ‘obvious’ is certainly no adequate substitute for assessing the scope of the defendant’s duty under th e circumstances *** .” Id. at 147-48.)
¶ 47 Ward recognized that the “ manifest trend of the courts in this country is a way from the

traditional rule absolving, ipso facto , owners and occupiers of la nd f rom liability for injuries resulting f rom know n or obvious conditions, and toward the standard expressed in section
343A(1) of the Restatement (Secon d) of Tort s (1965).” Id. at 150. Under section 343A , “ ‘ A

possesso r of l and is not liable to his invitees for physical harm cau sed to them by any activity or

condition on the land who se danger is known or obvious to them, unless the possessor should

antici pate the harm despite such knowledge or obviousness. ’ ” (Emphasis in original. ) Id. at 149 (quoting Restatement (Second) of Torts, § 343A (1965) ).
¶ 48 Ward also cited the Restatement co mmentary recognizing that a pla intiff may be

distracted from an “obvious” danger or forget a “ known” danger :

“ ‘ Comment e of section 343A(1) states the general rule that the owner or occupier may reasonably assume that invitees will exercise reasonable care for their own safety, and that ordinarily he need not take precautions against dangers which are known to the

visitor or so obvious tha t the visitor may be expected to discover

them. Comment f , however, explains that reason to expect harm to visitors from known or obvious dangers may arise ‘where the

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possessor has reason to expect that the invitee’s attention may be
distracted, so that he will not discover what is obvious , or will forget what h e has discovered, or fail to protect himself against it.

*** In such cases t he fact that the danger is know n , or is obv ious, is important in determining whether th e in v it ee is to be char g ed with contributory negligence, or assumption of risk. It is not,

ho weve r, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances .’ Restatement (Second) of Tort s § 343A, commen t f , at 220 (1965).”

Id.

Ward thus explained that “[t] he inquiry is whether the defendant should reasonably anticipate injury to those entrants on his premises who are g enerally exercising reasonable care for their own safety, but who may reason a bly be expected to be distracted, as when carrying large
bundles, or forgetful of the condition af te r having momentarily e ncountered it .” (Emphasis added.) Id. at 152.
¶ 49 Applying these principles to Ward ’s facts, the supreme court reversed the appellate court and upheld the plaintiff’s jury verdict

. The supreme court acknowledged that the concrete post was “not a hidden danger,” and that the “plaintiff walked past the post when entering the store

and admitted he was at least ‘subcon s ciously’ aware of its presence.” Id. at 152 -53. Nevertheless,

these facts did not relieve the defendant of its duty , b ecause

“ it was reasonably foreseeable that a customer would collide with the post while exiting defendant’s store carrying merchandise

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which could obscure [his] view of the post. *** Defendant had reason to anticipate that customers shopping in the store would, even in the exercise of reasonable care, momentarily forget the presence of the posts which they may have previously encountered by entering through the customer entrance door. It was also reasonably foreseeable that a customer carrying a large item which he had purchase d in the store might be distracted and fail to see the post upon exiting through the door.” Id. at 15 3-5 4.
In finding that the defendant owed a duty, the supreme court noted that it was “rea sonably

foreseeable that a customer might be inj ured by colliding with the post ” and that “ the magnitude

of the burden on defendant ” to protect customers from this risk was “slight.” Id. at 156.
¶ 50 Ward thus “ recognize [d] that there may be certain conditions which, although they may

b e loosely characterized as ‘known ’ o r ‘obvious’ to customers, may not in themselves satisfy defendant’s duty of reasonable care. If the d efendan t may reasonably be expected to anticipate

that even those customer s in the gen eral exercise of ord inary care will fail to avoid the risk

becau s e they are distracted or momentarily forgetful, then his duty may extend to the risk posed

b y the condition. ” Id. At the same time, Ward recognized th at it remains the province of a jury to

decide whether any “additional precautions were required to satisfy the defendant’s duty , ” as

well as to decide whether the plaintiff was contributory negligent. Id. at 156 -57.
¶ 51 We agree with Henderson that Ward is instructive under the facts of the instant case. That
is, we conclude that the defen dants’ duty was not eliminated by the evidence that the dangerous

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slippery- when

- wet condition was “known” to Henderson because it was still reasonably foreseeable that he might momentarily forget that condition and suffer injury.
¶ 52 We acknowledge Henderson’s testimony that, between the completion of the epoxy work

sometime in 2008 and his October 2009 injury, he slipped in the same area on tw o occasions and expressed his concerns about the condition to Popke and Pierce. In this sense, the slippery

- when

wet co ndition was generally “known” to him . However, we also must take into account the testimony that (1) he walked across the same area on a daily basis to enter and exit the condominium, where he resided for years before his injury; (2) the entrance was n ot s lippery

when it was not wet ; (3 ) the slippery- when

- wet condition was not “etched in [Henderson’s]

mind” and he simply was not thinking about it on the evening of the incident.
¶ 53 In this sense , Henderson’s prior knowledge of the hazard is analogous to the situation in

Ward , implicating the “distraction or forgetfulness” exception to the open and obvious doctrine

. In Ward , the plaintiff’s “subconscious” aware ness of the posts did not excuse the defendant’s duty because it was foreseeable that he would be momentarily distracted or forget about the

hazard

. Ward illustrates that d uty may exist if “ ‘ ther e is rea son to expect that the invitee’s

attention will be distracted *** or that af ter a lapse of time he ma y forget the ex istence of the

condition , even though he has discovered it ’ ” on a prior occasion. (Emphasis added.) Id. at 149 (quoting Prosser and Keeton on the Law of Torts § 61, at 427 ( W. Page Keeton et al. eds., 5th ed.
1984)).
¶ 54 This reasoning applies to this case. In our v iew, it is entirely foreseeable that Henderson , who customarily used the front entrance to come and go from his residence , might momentarily forget that the area near the entrance was slipper y when wet. Although he had slipped on two

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occasions since the epoxy work was completed the previous year, it was reasonably foreseeab l e that the potential hazard would not be “etched” in his mind in October 2009 and that he might

use t he front entrance on a rainy evening without remembering the slippery- when

- wet
condition. 2
¶ 55 We thus conclu de that the “forgetfulness or distraction” exception to the o pen and obvious doctrine applies

. Bucheleres , 171 Ill. 2d at 451. In turn, t his determination informs the analysis of the four factors in the d uty inquiry: (1) the reasona ble foreseeabilty of the injury, (2)

the likelihood of injury, (3) the magnitude of the bu r den of guarding against the injury, and (4 ) the consequences of placing the burden on the defendant. Bruns , 2014 IL 116998, ¶ 14.

“Where an exception to the open and obvious rule applies, the outcome of the duty analysis with respect to the first two factors is

‘reversed.’ [Citation.] Whereas operation of the open and obvious rule negatively impacts the foreseeability and likelihood of inj ury, application of an exception to the rule positively impacts the foreseeability and likelihood of injury.” Id. ¶ 20.
Accordingly , the first and s econd factors weigh in favor of imposing a duty of care upon the

defendants: as discussed above, i t was reasonably foreseeable and sufficiently likely that a
resident in Henderson’s circumstances would suffer injury from the slippery

- when

- wet
condition.

2 We further note that both Henderson and Popke testified that the slippery- when -wet condition was brought to Pierce’s attention. It is reasonable to assume that the reason for doing s o was to get it corrected.

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¶ 56 We also find that the remaining factors in the duty analysis

— the “magnitude of the burden of guarding against the injury” and “the consequences of placing that burden on the

defendant”— clearly favor imposing a duty on the defendants to guard against the condition in

this case

. Significantly , th ere is undisputed evidence that the defendants authorized, plan ned , and

executed the 2008 epoxy work on the front porch and stoop of the condominium

. PSI’s employee, Pierce, testified that he signed BMS’ s proposal for the epoxy work in his capacity as the Lofts’ agent

. That proposal specifically called for epoxy wo rk at Popke’s condominium at a cost of $848. Moreover, Pierce testified that he received complaints about the slipperiness of the epoxy coating after BMS completed its work , and that he communicated them to BM S. As the

defendants undertook the work that alleg edly caused the dangerous condition, we cannot say that the “magnitude of the burden” to guard against the condition would be too great to impose that duty upon them

. Likewise, as the defendants carried out the work, the y were in the best position

to ident ify and guard against any hazardous condition resulting from that work. Thus, the final factor, the “consequences of placing that burden on the defendant[s], ” also weighs in favor of

im posing duty on the defendants.
¶ 57 We thus disagree with the trial court and conclude that the defend ants owed Henderson a duty of reasonable care under the common law , notwithstanding the open and obvious doctrine

. In turn, we find that genuine issues of material fact exist as to whether the defendants breache d their duty of care and whether any such breach proximately caused Henderson’s alleged injuries. 3

3 We note that our decision on the issue of duty does not preclude a fact finder from determining that Henderson’s negligence contributed to his injuries, which may reduce any recoverable damages. See Ward , 136 Ill. 2d at 156 -57; Bucheleres , 171 Ill. 2d at 447 (“The existence of a defendant’s legal duty is

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¶ 58 As reversal of summary judgment is warranted on th is basis, we need not analyze

Henderson’s alternative arguments for reversal , including his claim that the L ofts independently owed him a duty to maintain the area in question under section 18.4 of the Act (765 ILCS

605/18.4 (West 2010 )) and the terms of the Lofts’ condominium declaration, or that PSI and BMS independ ently owed d uties of care under their respective contracts

. Sim ilarly, as we conclude that an exception to the open and obvious rule applied, we need not separately address

Henderson’s claim that the rule cannot benefit BMS because it did not own or occupy the
property. See Garest v. Booth , 2014 IL App (1st) 121845, ¶¶ 29-32 (construction cont ra ctor who completed work years before plai n tiff’s accident and did not “ possess, c ontrol, or manage the building” could not invoke the “open and obvious doctrine”).
¶ 59 For the foregoing reasons, we reverse the order of the circuit court, to the extent that it granted summary judgment in favor of the three defendants: Lofts, PSI, and BMS.
¶ 60 We proceed to address Popke ’s brief to our court in which she claims that we must affirm the trial court to the extent that it granted Popke summary judgment with respect to BMS’s contribution claim against her. Popke first asserts that we lack jurisdiction to disturb that portion

of the order because BMS failed to file a notice of cross

- appeal. Separately, she argues that she cannot be liable for contribution because, under the open and obvious doctrine, she had no duty to maintain the area where Henderson was injured

. ¶ 61 We first reject Po pke’s suggestion that we have no jurisdiction to review this portion of

the trial court ’s order

. Although BMS did not file a cross -appeal, Henderson’s notice of appeal

separate and distinct from the issue of a plaintiff’s contributory negligence and the parties’ comparative fault.”).

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was directed broadly to “the trial court’s order of September 16, 2016” and not limited to particular motions or parties. “[T]he notice of appeal is to be libe rally c onstrued as a whole. ”

Jackson v. Retirement Board of the Policemen’s Annuity & Benefit Fund , 293 Ill. App. 3d 694,
698 (1997). As the notice of appeal was directed to the entirety of the September 2016 order, this court has jurisdiction to review all aspects of that order.
¶ 62 Popke otherwise argues that she was entitled to summary judgment based on the same

“ open and obvious ” argument asserted by the defendants. We reject her reliance on the doctrine

for the same reasons we decline to find it applicable with respect to the Lofts, PSI, and BMS.
Nonetheless, we can affirm the trial court’s grant of summary judgment on any basis apparent in

the record , regardless of whether the trial court relied on that basis. Har lin v. Sears Roebuck &

Co. , 369 Ill. App. 3d 27, 31

- 32 (2006). We find that , independent of the “open and obvious”
doctrine, Popke did not owe a duty to maintain the area where Henderson was injured. As a
result, she was enti tled to summary judgment with respect to BMS’ s contribution claim.
¶ 63 First , the four factors in the common law duty analysis do not support imposing a duty of care upon Popke under the circumstances of this case. As we have already discussed , it is undisputed that Lofts, PSI, and BMS planned and conducted the epoxy work, and that they responded to homeowner complaints of slipperiness. On the other hand, there is zero evidence that Pop ke had an y prior knowledge or control of the epoxy work, or that sh e was otherwise in a position to remed y the slippery condition. Under the circumstances, we will not impose any common law duty on Popke to guard against or remedy the slippery condition that other parties indisputably created.

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¶ 64 Moreover, the record evidence otherwise makes clear that the area of Henderson’s injury

was a “common element” under section 18.4 (a) of the Act, meaning that the Lofts was statutorily obligated to provide for its “care, u pkeep, ma intenance, replacement and impr ove ment. ” 765

ILCS 605/18.4 (a) (West 2010) ; see also 765 ILCS 605/2(e) (West 2010) (defining “ ‘Common

Elements’ ” to mean “all portions of the property except the units, including limited common elements unless otherwise specified”)

. Significantly, Pierce , an agent of the Lofts, agreed that the
step and stoop at the front entrance were common elements that were the responsibility of the

Lofts and that the Lofts retained PSI to manage the maintenance of those common areas. Accordingly, BMS could not establish that Popke breached a duty to maintain the area in question as necessary to support its contribution claim. Thus, we affirm the trial court order only to the extent that it granted Popke’s motion for summary judgment with respect to BMS’s

contribution claim against her.
¶ 65 For the foregoing reasons, we reverse the order of the circuit court to the extent that it granted the summary judgment motions of the Lofts , PSI, and BMS; affirm the order to the extent that it granted Popke’s motion for summary judgment with respect to BMS’s contribution claim against her ; and remand this case to the circuit court for further proceedings consistent with this opinion.
¶ 66 Affirmed in part and reversed in part; cause remanded.

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