Illinois Official Reports

Appellate Court

Foy v. Village of La Grange, 2020 IL App (1st) 191340

Appellate Court 

Caption

JAMES FOY, Plaintiff-Appellant, v. THE VILLAGE OF LA 

GRANGE, ILLINOIS, Defendant-Appellee.

District & No. First District, Fifth Division 

No. 1-19-1340

Filed November 6, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 18-L-4767; the 

Hon. Catherine Schneider, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Brion W. Doherty and Dominic C. LoVerde, of Motherway & 

Napleton LLP, of Chicago, for appellant.

Michael R. Hartigan, of Hartigan & O’Connor P.C., of Chicago, for 

appellee.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with 

opinion.

Presiding Justice Delort and Justice Rochford concurred in the 

judgment and opinion.
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OPINION

¶ 1 The plaintiff-appellant, James Foy, brought a negligence action against the defendantappellee, the Village of La Grange (Village). The trial court entered summary judgment in 

favor of the Village. Mr. Foy now appeals. For the following reasons, we affirm the judgment 

of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On June 5, 2017, at approximately 6 p.m., Mr. Foy was walking home on the sidewalk 

along North Park Road in the Village (sidewalk). The sidewalk is owned and maintained by 

the Village. As Mr. Foy was walking in the middle of the sidewalk, he tripped on a raised 

sidewalk slab, or what he referred to as a “raised deviation” between the sidewalk slabs (the 

sidewalk deviation). He guessed that the sidewalk deviation was caused by tree roots 

underneath the sidewalk. When Mr. Foy tripped and fell, he broke his right wrist and fractured 

his left rib. 

¶ 4 On May 9, 2018, Mr. Foy filed a complaint against the Village, alleging that the Village 

was negligent in maintaining the sidewalk. The Village moved for summary judgment, alleging 

that they owed no duty for a de minimis condition.1 The Village argued that, in the alternative, 

the condition on the sidewalk was open and obvious and so the Village owed no duty of care 

to Mr. Foy. The Village also argued that, even if a duty existed, Mr. Foy did “not meet his 

burden of showing actual or constructive notice of this inconspicuous sidewalk defect.”

¶ 5 Mr. Foy testified, in a deposition for the case, that at the time of the accident, it was still 

light out, he was not distracted as he was walking, and he had “no trouble seeing where [he] 

[was] going.” The following exchange ensued:

“[THE VILLAGE’S COUNSEL]: [Interrogatory No.] 31 asks if there are any 

obstructions upon the sidewalk that prevented from you [sic] observing the defect that 

you claim caused your fall and you state there were no obstructions, correct?

[MR. FOY]: No.

[THE VILLAGE’S COUNSEL]: If you were looking down at that particular 

sidewalk defect just prior to your fall, would you have been able to see it?

[MR. FOY]: Yes.”

¶ 6 After Mr. Foy fell, he laid on the ground for a few minutes. His friend and neighbor, Jeff 

White, was walking in his driveway nearby and ran over to check on Mr. Foy. When Mr. Foy 

stood up, he saw “the raised sidewalk” on which he had tripped. Mr. Foy walked home, took 

some Tylenol, and laid down. He did not seek immediate medical attention. The next day, he 

felt a lot of pain all over his body, but especially in his wrist and rib. Later that same day, he 

went to the emergency room. In the emergency room, X-rays revealed that his right wrist was 

broken and his left rib was fractured. His medical bills for treatment totaled $5449.

1

Although a municipality has a duty to keep its property in a reasonably safe condition, it has no 

duty to repair de minimis defects in its sidewalks. St. Martin v. First Hospital Group, Inc., 2014 IL App 

(2d) 130505, ¶ 13. There is no simple standard to separate de minimis defects in sidewalks from 

actionable ones and whether a height variance between two sidewalk slabs is de minimis depends on 

all of the pertinent facts of the case. Id. ¶ 14.
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¶ 7 Following the accident, Mr. Foy took several photographs of the sidewalk where he 

tripped. Although he did not include any measuring sticks in the photographs, he testified that 

the height variance between the sidewalk slabs at the deviation measured between two and 

three inches. When asked about photographs of the sidewalk deviation taken by the Village, 

which showed the height variance measured an inch and a half, Mr. Foy responded that the 

Village’s measurements were inaccurate because “the measuring stick [was] on top of the dirt.” 

¶ 8 Mr. Foy’s friend and neighbor, Mr. White, testified via affidavit. Mr. White testified that 

he lived at 67 North Park Road in the Village and that Mr. Foy tripped and fell in front of his 

home. He did not observe the fall, but he understood “that [Mr. Foy] attributed his fall to an 

approximate two inch *** displacement at the expansion joint between the sidewalk slabs near 

the parkway tree in front of our home.”2

¶ 9 Ryan Gillingham, the Village’s director of public works, also testified in a deposition. He 

testified that he is responsible for the Village’s sidewalks. A week after Mr. Foy’s accident, he 

went to the sidewalk and measured the sidewalk deviation. It measured between 1.5 and 1.75 

inches. He said it was likely caused by tree roots. He testified that the deviation in the sidewalk 

was not uncommon in the Village and that there was nothing “particularly unusual” about it. 

Looking at a picture of the sidewalk deviation, Director Gillingham rated it a “Condition 5” on 

a scale of 6, mainly due to the joint displacement of the sidewalk slabs. Director Gillingham 

did not know how long the sidewalk deviation had existed. He explained that, generally, 

sidewalks in the Village are only inspected for improvement when there is street construction. 

¶ 10 A hearing on the Village’s motion for summary judgment commenced. The parties did not 

make any oral arguments but instead relied upon their briefs on the motion. In its brief, the 

Village gave three alternative arguments as to why summary judgment was appropriate. First, 

the Village argued that the sidewalk deviation was a de minimis defect for which it had no duty 

to repair. The Village alternatively argued that the sidewalk deviation that Mr. Foy tripped on 

was open and obvious and so the Village owed Mr. Foy no duty of care. Specifically, the 

Village claimed that “there is no dispute regarding the visibility of the identified sidewalk 

defect” and so the open and obvious rule precluded Mr. Foy’s negligence action. And finally, 

the Village argued that, even if it had a duty regarding the sidewalk deviation, it did not have 

actual or constructive notice of it. 

¶ 11 In his brief opposing summary judgment, Mr. Foy argued that a genuine issue of material 

fact existed as to the height of the sidewalk deviation and so summary judgment on the 

Village’s de minimis argument would be improper. He argued that, for the same reason, a 

genuine issue of material fact also existed regarding whether the sidewalk deviation was open 

and obvious. Mr. Foy further argued that a genuine issue of material fact existed as to whether 

the Village had constructive notice of the sidewalk deviation. 

¶ 12 At the conclusion of the hearing, the trial court granted the Village’s motion for summary 

judgment, dismissing Mr. Foy’s negligence action. Although the trial court rejected the 

Village’s de minimis argument because a question of fact existed as to the height of the 

sidewalk deviation, the trial court found in favor of the Village on its open and obvious 

argument. The trial court found that there was no issue of fact that the sidewalk contained a 

visible defect with the raised deviation. The trial court stated:

2

Mr. White’s wife, Nikki White, also testified via affidavit. She testified consistently with Mr. 

White.
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“And in my review of the facts including the photographs of the condition and [Mr. 

Foy’s] testimony, that if he had been looking at the sidewalk he would have seen it, I 

find that as a matter of law it is open and obvious.”

¶ 13 The trial court still considered the Village’s duty of care owed to Mr. Foy. The trial court 

found that the fact that the sidewalk deviation was open and obvious, the fact that the risk of 

injury was minimal, and the fact that the Village had “miles and miles of sidewalk” to maintain 

all weighed in favor of no duty imposed on the Village. The trial court concluded by noting 

that the two exceptions to the open and obvious rule did not apply since it was light out at the 

time of the accident and there were no obstructions that prevented Mr. Foy from seeing the 

sidewalk deviation.

¶ 14 The trial court additionally found that Mr. Foy failed to raise any genuine issue of material 

fact regarding whether the Village had the required notice of the sidewalk deviation and so the 

trial court granted summary judgment on that basis, as well.

¶ 15 The trial court then entered an order granting summary judgment in favor of the Village 

and dismissing the case “for reasons stated on the transcribed record.” Mr. Foy filed a motion 

to reconsider, which the trial court denied. This appeal followed.

¶ 16 ANALYSIS

¶ 17 We note that we have jurisdiction to review this case, as Mr. Foy filed a timely notice of 

appeal following the trial court’s judgment denying his motion to reconsider. Ill. S. Ct. R. 301 

(eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017). 

¶ 18 Mr. Foy presents the following sole issue: whether the trial court erred in granting summary 

judgment in favor of the Village.

¶ 19 The purpose of summary judgment is to determine if a genuine question of material fact 

exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment 

should be granted only where the pleadings, depositions, admissions, and affidavits on file, 

when viewed in the light most favorable to the nonmoving party, show that there is no genuine 

issue as to any material fact and that the moving party is clearly entitled to a judgment as a 

matter of law. 735 ILCS 5/2-1005(c) (West 2018); Adams, 211 Ill. 2d at 43. “Although 

summary judgment is to be encouraged as an expeditious manner of disposing of a lawsuit, it 

is a drastic measure and should be allowed only where the right of the moving party is clear 

and free from doubt.” Wells Fargo Bank, N.A. v. Norris, 2017 IL App (3d) 150764, ¶ 19. We 

review appeals from summary judgment rulings de novo. Id.

¶ 20 Mr. Foy argues that a genuine issue of material fact exists in this case as to (1) whether the 

sidewalk deviation was open and obvious and (2) whether the Village had constructive notice. 

As the open and obvious issue is dispositive, we turn to it first.

¶ 21 In a negligence action, the plaintiff must plead and prove the existence of a duty owed by 

the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the 

breach. Smith v. The Purple Frog, Inc., 2019 IL App (3d) 180132, ¶ 11. Under the open and 

obvious rule, a party who owns or controls land is not required to foresee and protect against 

an injury if the potentially dangerous condition is open and obvious. Bruns v. City of Centralia, 

2014 IL 116998, ¶ 16. Stated another way, no duty to warn or protect may be imposed upon a 

defendant where the risk of injury is open and obvious. Sandoval v. City of Chicago, 357 Ill. 
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App. 3d 1023, 1028 (2005).3 “ ‘Obvious’ means that ‘both the condition and the risk are 

apparent to and would be recognized by a reasonable man, in the position of the visitor, 

exercising ordinary perception, intelligence, and judgment.’ ” Bruns, 2014 IL 116998, ¶ 16 

(quoting Restatement (Second) of Torts § 343A cmt. b, at 219 (1965)). Whether a condition is 

open and obvious is an objective standard. Rozowicz v. C3 Presents, LLC, 2017 IL App (1st) 

161177, ¶ 16.

¶ 22 We agree with the trial court in this case that no genuine issue of material fact exists as to 

whether the sidewalk deviation was open and obvious. Our supreme court has made it clear 

that sidewalk defects may constitute open and obvious danger. Bruns, 2014 IL 116998, ¶ 17. 

Although there is conflicting evidence in this case about the size of the sidewalk deviation, 

there is no dispute that there was nevertheless an apparent sidewalk deviation which any 

reasonable person could see. See Sandoval, 357 Ill. App. 3d at 1029 (any reasonable person 

exercising ordinary care in traversing down a sidewalk with elevation changes would recognize 

and appreciate the risk involved). 

¶ 23 Significantly, Mr. Foy testified that if he had been “looking down at that particular 

sidewalk defect just prior to [his] fall,” he would have seen it. The fact that Mr. Foy admits 

that the sidewalk deviation was readily visible supports finding that it was open and obvious. 

See Prostran v. City of Chicago, 349 Ill. App. 3d 81, 85-86 (2004) (a defect is open and obvious 

where both the condition and the risk are easily recognizable). 

¶ 24 Citing Buchaklian v. Lake County Family Young Men’s Christian Ass’n, 314 Ill. App. 3d 

195, 202-03 (2000), Mr. Foy maintains that “no reasonable person would be looking straight 

down at the sidewalk while walking.” However, Buchaklian involved a person tripping over 

raised portions of a rubber floor mat, and this court held that the mat was not an open and 

obvious defect “because of its size, the lack of significant color contrast between the defect 

and the surrounding mat, or merely the short time that a person has in which to discover the 

defect as he or she takes a few steps toward the mat.” Id. at 202. Importantly, we held that it 

was the kind of situation that a reasonably prudent person would not anticipate. Id. Although 

in that case we “refuse[d] to hold that invitees *** are required to look constantly downward” 

(id.), it does not necessarily follow that any defect on the ground cannot be open and obvious. 

In contrast to raised portions of a rubber mat that blend in with the rest of the mat, a raised 

sidewalk slab causing a deviation is readily visible to a reasonably prudent pedestrian, even 

when not looking downward. Not to mention that sidewalk deviations are common and can be 

easily anticipated by the average pedestrian. 

¶ 25 Further, Mr. Foy’s claim that he did not see the sidewalk deviation until after his fall does 

not render the open and obvious rule inapplicable, as it is not based on his subjective knowledge

but rather on an objective standard. Rozowicz, 2017 IL App (1st) 161177, ¶ 16. Accordingly, 

we find that no issue of fact exists as to whether the sidewalk deviation was an open and 

obvious defect precluding the Village from owing a duty of care to Mr. Foy. 

¶ 26 However, determining that the open and obvious doctrine applies does not end our inquiry 

regarding duty. Bruns, 2014 IL 116998, ¶ 34. We must still consider the traditional four factors 

of a duty analysis: (1) the reasonable foreseeability of the injury, (2) the likelihood of the 

3

There are two exceptions to the open and obvious rule: the distraction exception and the deliberateencounter exception. Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 257-58 (2010). 

However, neither exception is at issue in this case.
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injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences 

of placing that burden on the defendant. Id. 

¶ 27 As a defendant is ordinarily not required to foresee injury from a dangerous condition that 

is open and obvious (id. ¶ 35), the first factor carries little weight. As does the second factor 

because “ ‘it is assumed that persons encountering the potentially dangerous condition of the 

land will appreciate and avoid the risks,’ making the likelihood of injury slight.” Id. (quoting 

Sollami v. Eaton, 201 Ill. 2d 1, 17 (2002)). Mr. Foy’s testimony that the sidewalk deviation 

was readily visible supports this conclusion. 

¶ 28 For the third and fourth factors, we must consider that the Village has miles of sidewalk to 

maintain. It is well recognized that sidewalks settle, erode, form cracks, and have other types 

of disruptions to the surface over time. It is not possible for the Village to prevent tree roots 

and other forms of natural erosion from disrupting the many miles of sidewalks within its 

borders. Requiring the Village to constantly inspect its sidewalks for possible sidewalk 

deviations would create a huge burden; the consequences of such a burden would apply to all 

the sidewalks in the Village. And “[t]he imposition of this burden is not justified given the 

open and obvious nature of the risk involved.” Id. ¶ 36. Not to mention that there was no 

testimony to establish that the Village had notice of this particular sidewalk deviation. This all 

leads to the conclusion that this sidewalk deviation was not extraordinary so as to suggest that 

the Village should have noted it in routine inspection. Accordingly, we find that the additional 

two factors of the burden and consequences being placed on the Village would be too great 

and therefore no legal duty was owed to Mr. Foy. We thus affirm the trial court’s order granting 

summary judgment in favor of the Village and dismissing Mr. Foy’s negligence action.

¶ 29 However, by this ruling, we do not intend to reduce or expand the scope of liability for the 

Village regarding its responsibility to inspect its sidewalks and other public areas. Nor do we 

intend to diminish the rights and safety of pedestrians regarding the use of Village sidewalks 

and other public areas. Rather, we are scrupulously applying the law as it exists to the particular 

facts of this case.

¶ 30 Having held that the trial court properly granted summary judgment on the grounds that 

the sidewalk deviation was open and obvious and affirming on that basis, we need not examine 

the alternative grounds for which the trial court granted summary judgment, i.e., that the 

Village lacked notice of the sidewalk deviation. See Vulpitta v. Walsh Construction Co., 2016 

IL App (1st) 152203, ¶ 22 (this court may affirm on any grounds in the record).

¶ 31 CONCLUSION

¶ 32 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 33 Affirmed.