## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Waters v. City of Chicago , 2012 IL App (1st) 100759

Appellate Court Caption NORMA WATERS
, Plaintiff-Appellant, v. THE CI TY OF CHI CAGO, a Municipal Corporation, Defe ndant-Appe llee.

District & N o. First District, Six th Division Docke t No. 1-10-0759

Filed Rehea ringdenied Marc h 2, 2012

April 9, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Summary judgme nt for defenda nt city was rever sed i n an action for the injuries suffe red by plaintiff when she trip p ed o ver the base of a street barr icade when she was startled by the noise of a jac kh am m er from a

near by construction site, notwithstanding the city ’s contention t h at the barr icade s wer e an open and obvious condition and t h at the distraction exception did not apply
, sinc e t h e city could have rer outed pedestria n traff ic or provide d an alter

native wa lkway , the burden would have be en minimal and the g rant of summary judgme nt was improper wher e the city owed a duty of ca re to plaintiff unde r the c ircumstance s.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 06-L -7932; the Hon. Eileen M. B rew er, Judge , presiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Fr ancis Patrick Murphy
, of Corboy & Demetrio, P.C.
, o f C hicag o, for appellant.

Mara S. Geor g es, Corporation Counsel
, o f Chicag o (B enna Ruth Solomon, My

riam Z rec zny Kaspe r, and J

. Mark Pow el l, Assistant Corporation Counsel, of counse l), for a ppellee.

Panel PR ESI DI NG J USTI CE R. GORDON delivere d the judgme nt o f th e c o u r t, with opinion.
J ustice Palmer concur

red in the judgment and opinion. *
J ustice Ga

rcia dissented, with opinion.

OP INION

¶ 1 Plaintiff Norma Waters a ppeals from the circuit court’s grant of summar y judgme nt to defe ndant City of Chicag o (City ) in her persona l injury suit charg ing the City with neg lige nce in maintaining a street barr icade over a sidewalk. The plaintiff was injured when she tripped

over the metal base of a street barr icade upon being startled b y t h e sudden noise of a jackha mmer from a near

by construction site. The plaintiff contends the circ uit court err ed in
g ranting summary judgme nt beca use two questions of fac t rema in: (1) whether the barr icade she tripped over was an open and obvious condition, and (2) whether the defe ndant owed the plaintiff a duty

of ca re unde r the distrac tion ex ception. We re verse

.

¶ 2 BA CKGROUND ¶ 3 The following fac ts were p re s en t ed t o t h e ci rc u i t co u rt in pleading s, aff idavits, photogr aphs, admissions on file, a map, a nd in pla intiff’s deposition. O n August 22, 2005, the 72-year -old plaintiff wa s injured in a fa ll at the intersec tion of Milwaukee a nd Hig g ins Avenue s in Chicag o. Earlier
, the plaintiff had walked on a sidewalk northwest along the east side of Milwaukee Avenue from her home at 4663 North Milwaukee Avenue

. She eventua lly

crosse d to the west s i d e of Milwaukee to stop at her bank and then at a McDona ld’s. She then beg an her return trip, walking in a southern direc tion on the sidewalk on the west side of Milwaukee back to Hig g ins Ave. ¶ 4 At the intersec tion of Milwaukee and Hig g ins, the plaintiff came upon street ba rrica des
at the crosswa lk. The barr icade s had “metal barr iers” at the bottom, which serve d as leg s for the barr icade structure

. The metal base was “sticking out in t h e cr ossway .” The plaintiff

J ust ic e Cahi ll ser ved on the pan el at the t i me of ora l ar gum ent s. J ust ic e Pal m er re pla ced * J ust ic e Ca hil l f

oll owin g Ju st ic e Ca hil l’ s de at h onDece m ber4, 2 011.

-2 -stepped over two of the metal bases. At her deposition, she testified: “[A]s I was starting over

the third barrier, I hear d a hug e bang

. An d I t u rn ed my head just that second and down I
went. I was so distracted. It w as so noisy .” After falling
, the plaintiff saw that the source of the noise was a jackha

mmer being operated by a constructio n wo rk er about 12 to 15 fee t

awa y from her. The p l ai ntiff sustained an injury to her wrist in the fall, which require d
surg ery

. ¶ 5 The circ uit court g rante d the City ’s motion for summary judgme nt. The court ruled that the condition of the barr icade s was open and obvious and that the distraction exception did not apply to impose a duty

of ca re on the City

.

¶ 6 ANALYSI S ¶ 7 Summary judgme nt is only appropr iate when the pleading s, depositions, admissions, a nd aff idavits on file, viewed in the light most favor able to the nonmovant, show that no g enuine issue of materia l f

act exis ts a

nd that the moving party is entitled to judgme nt as a matter of law. 735 I L CS 5/2-1005(c ) (West 2004) ; Sollami v

. Eaton
, 201 I ll. 2d 1, 6 (2002); Clif ford

v. W harton Business Group, L.L.C

. , 353 I ll. App. 3d 34, 39-40 (2004). Summary judgme nt is a drastic means of disposing of litigation and should only be allowed when the rig ht of the moving party to judgme nt is clea r and fre e from doubt. Sandoval v. City of Chicago
, 357 I ll. App. 3d 1023, 1027 (2005). I f rea sonable p eo p l e can draw differ ent infere nces from undisputed fac ts, then summary judgme nt is inappropriate. W illiams v. Manche

ster , 228 I ll. 2d 404, 417 (2008). The court should construe the evidenc e strictly ag ainst the movant and liberally in favor of

the opponent. W

illiams , 228 I ll. 2d at 417. ¶ 8 On a motion fo r s ummary judgme nt, the trial court has “a duty to construe the re cord strictly ag ainst the m ovant and liberally in favor of t he nonmovi ngparty .” Jack son v. TLC Associates, Inc.
, 185 I ll. 2d 418, 423-24 (1998). As a result, summary j u d gment is not appropr iate: (1) if “ther e is a dispute as to a materia l f act” ( Jack son , 185 I ll. 2d at 424); (2) if “re asonable persons could draw diverg ent inferenc es from undisputed materia l fac ts” ( Jack son , 185 I ll. 2d at 424); or (3) if “re asonable persons c ould differ on the weight to be
g iven the rele vant fac tors” of a leg al standard ( Calles v. Scripto-Tokai Corp.
, 224 I ll. 2d 247, 269 (2007))

. We revie w a g rant of summary judgme nt de novo

. Golden Rule Insurance Co.

v. Schwartz
, 203 I ll. 2d 456 (2003); Pritza v. Village of Lans ing , 405 I ll. App. 3d 634, 641 (2010). De novo considera tion means we perf

orm the same analy sis that a trial judge would perf orm and g ive no defe renc e to the judge ’s conclusions or specific rationale

. Khan v. BDO Seidman, LLP , 408 I ll. App. 3d 564, 578 (2011). ¶ 9 The sol e i s s u e i n t h i s ca s e is whether the defe ndant had a duty to use due car e. Our

an aly sis beg ins with a revie w of sections 343 and 343A of the Restatement (Second) of Torts, which has been adopted by I llinois and is part of the analy sis of a “fa ll down” acc ident. Section 343 provides:
“A possessor of land is subject to liability for phy sical harm cause d to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of rea sonable car e wo u ld discover the condition, and should realize that it involves an unrea sonable risk of ha rm to invitees, and

-3 -(b) should expect that they will no t d iscover or rea liz e the dang er, or will fail to protec t themselves ag ainst it, and (c) fails to exercise rea sonable car e to protec t them ag ainst dang er.” Restatement (Second) of Torts § 343 (1965)

. ¶ 10 Section 343 should be rea d toge ther with section 343A (Restateme nt (Second) of Torts § 343 cmt. a (1965))
, which provides the following “known or obvious” exception to t h e liability of a posse ssor of land unde r sec tion 343:
“A possessor of land is not liable to his invitees for phy sical harm cause d to them by any activity or condition on the land whose dang er is known or obvious to them, unless the
possessor should anticipate the harm despite such knowledg e or ob viousness.” Restatement (Sec ond) of Tor ts § 343A (1965). ¶ 11 The plaintiff argues that the circ uit court err ed in its g rant of summary judgme nt be cause whether the condition was open and obvious and whether a distraction exception applies are both questions of fac t for a trier of fac t to answe r. To support the asser tion as to the open and obvious issue, the plaintiff offe rs the following quote. “Whether in f act the condition itself

serve d as adequate notice of i ts prese n ce , o r whether additional prec autions wer e required
to satisfy the defe ndant’s duty
, are questions proper ly left to the trier of fac t.” W ard v. K mart Corp.
, 136 I ll. 2d 132, 156 (1990). In her main brief, the plaintiff asser ts, “The deter

mination of whether a condition is open and obvious does not submit itself to summary judgme nt.” As
to the application of the distraction exception, the plaintiff asser ts, “The re is no dispute that Ms. Waters say s she was distracted. Whether her distraction is cre dible or sufficie nt to meet the distraction exception is a question for the trier of fac t.” ¶ 12 The City replies, in pertinent part, that it had no duty to plaintiff beca use the bar

rica des

wer e an open and obvious condition and further claims that the distraction exception is not applicable here and cannot cause a duty

. The essential elements of a cause of action in a “fa ll down” acc ident based on common law neg lige nce are the exis tence of a duty and an injury proxi mately cause d by that brea ch. W ard
, 136 I ll. 2d at 140; Clif ford
, 353 I ll. App. 3d at 37. Gene rally
, a duty of car e arises wher e the parties stand in such a relationship to one another that the law imposes upon the defe ndant an obligation of rea sonable conduct for the benef it of the plaintiff. W

ard
, 136 I ll. 2d at 140. Whether a defe ndant owes a plaintiff a duty of car e is usually a question of law

to be decide d by the cour t. W ard , 136 I ll. 2d at 140. In making this deter mination, the court is to consider the following fac tors: (1) the fore seea bility of the injury ; ( 2) the likelihood of the injury ; ( 3) the mag nitude of the burden on the defe ndant of
guarding ag ainst the injury ; and (4) the conseque nces of placing the burden on the defe ndant. Deibert v. Bauer Brothers Construction Co.
, 141 I l l. 2d 430, 438 (1990). Where no duty exis ts, the plaintiff cannot rec over. Schoenbe ck v. Du Page W ater Comm’n
, 240 I ll. App. 3d 1045, 1048 (1993). Our supreme court has held that once a court finds that a dang er is open and obvious, the court’s analy sis is not “complete ” until it has analy zed these four “tra ditional factors.” Jack son v. TLC Ass ociates, Inc

. , 185 I ll. 2d 418, 425 (1998). ¶ 13 It is axiom atic that no leg al duty arises unless the harm is rea sonably for es ee ab l e. S ee Renslow v. Mennonite Hospital
, 67 I ll. 2d 348, 354-55 (1977). Where as here a plaintiff alleg es that she was i njured by a condition on a defe ndant’s proper ty , we decide the

-4 -fore seea bility prong of the I llinois common law duty test by ref ere nces to se ctions 343 and 343A of the Restatement. Lafever v. Kemlite Co.
, 185 I ll. 2d 380, 389 (1998); Dreibert
, 141 I ll. 2d at 438. ¶ 14 As our I llinois Supreme Court has held, “per sons who o wn , o cc up y , or control and maintain land are not ordi n ar ily require d to fore see and protec t ag ainst injuries from potentially dang erous conditions that are open and obvious.” Buche leres v. Chicago Park District
, 171 I ll. 2d 435, 447-48 (1996). One of th e ex ceptions to this g ener al rule is the “distrac tion ex ception” illustrated in c omment f to section 343A, which states: “The re are , howeve r, case s in which the possessor of land can and should anticipate that
t h e dang erous conditions will cause phy sical harm to the invitee notwithstanding i t s known or obvious dang er. In such case s the possessor is not relieve d of the duty of

re as o n able car e which he owes to the i nvitee for his protec tion. This duty may re q u i re him to war

n the invitee or to take other rea sonable steps to protec t him, ag ainst the known or obvious condition or activity
, if the possessor h as reason to expect that the invitee will never

theless suffe r phy sical har m. Such rea son to expect harm to the visitor from known or obvious dang ers may arise, for example, wher e the possessor has rea son to expect that the invitee’s attention may be distracted, so that he will not discover wh at i s o b v ious, or will forg et what he has discovere d, or fail to p ro t ec t h i mself ag ainst it. Such rea son may also arise wher e the possessor has re as o n t o expect that the i nvitee will proce ed to encounte r t he known or obvious dang er be cause to a rea sonable man in his position the advantag es of doing so would outweig h the appar ent risk. In such ca s es the fac t that the dang er is known, or obvious, is important in deter mining whether t h e i n v itee is to be char g ed with contributory neg lige nce or assumption of risk. (See §§ 466 and 469D.) It is not, howeve r, conclusive in deter

mining the duty of the possessor, or whether he has acte d rea sonably under the circ umstances.” Restatement (Sec ond) of Tor ts § 343A cmt. f (1965). ¶ 15 T h e distraction exception involves a situation wher e a possessor of land should anticipa te the harm beca

use it has rea son to expect that the invitee’s attention may be distracted, so that the i nvitee would not discover the c ondition despite its obviousness or wil l forg et what he has discovere d and fail to protec t ag ainst it. Deibert
, 141 I ll. 2d at 4 3 7, 439-40 (citing Restatement (Second) of Torts § 343A cmt. f (1965)) ; W ard
, 136 I ll. 2d at 153-55. Thus, the distraction exception g ener ally involves a situation wher e the injured p arty was distracted from the open and obvious condition beca use circ umstances require d him or her to focus on

some other condition or hazard. True v. Gree nwood Manor W est, Inc.
, 316 I ll. App. 3d 676, 680 (2000). ¶ 16 We f

ind pla intiff’s argument that the question of whether the barr icade s wer e open and obvious is a question of fac t for the trier of fac t not persua si v e. W e fu rt h er find that plaintiff’s argument that whether the distraction exception is applicable is also a question of fac t to be decide d by the t rier of fac t not persua sive. Howeve r, we agree with plaintiff that the cour t’s g rant of summar

y judgme nt here is improper. ¶ 17 Ba sed on plai n t i ff’s d ep o s i t i o n testimony
, the barr icade s and their bases wer e not

conce aled or hidden in any way

. Plaintiff was car efully walking and had walked past a

-5 -barr icade when the sound of the jackhammer distracted her causing her to trip over the base

of t he thi rd barrica de. The barr icade an d i t s b ase fell within the definiti on of “obvious” as set fo rt h i n co m ment b to section 343A of the Restatement. Our conclusion here does not

mean that all barr icade s and their bases on construction sites are obvious as a matter of law. ¶ 18 Howeve r, d es p i t e t h e o b v i o u s n es s o f the barr icade and its base, plaintiff bec ame distracted upon hear ing the loud noise from the jackhammer. Def endant cre ated the hazard but not the distraction. It is rea sonable to expect that a defe ndant who place s a barr icade over

a sidewalk and place s a portion of their bases in an are a of ingr ess and egress on a public sidewalk without signs war ning people to avoid walking in the are a could fore see that people could rea sonably become injured and would likely become injured if they used the walkwa y

. It can also be rea sonably expected that people would walk on the sidewalk notwithstanding its p ar t i al barr icade

. For these rea sons, we cannot say , as a matter of law, that defe ndant should not have rea sonably anticipated the distraction and should not have fore seen the injury to plaintiff. It wo u l d h ave been easy for the defe ndant to have barricade d the entire walkwa y so that no one could us e i t until the construction was complete and the
conseque nces of doing so would not have place d any g reat burden on the def en d an t

. The defe ndant City is shielded from liability for failing to ere ct barr icade s or provide war nings. Prostran v. C ity of Chicago
, 349 I ll. App. 3d 81 (2004). Howeve r, once the City place s barr icade s, it is not shielded from liability when barr icade s are place d neg lige ntly

. 745 I L CS 10/3-104 (West 2004) (stating that public entities ar e not liable for injuries cause d by “the failure to initial l

y provide” war

nings, signa ls, or barr icade s (empha sis added) ). See also Santelli v. City of Chicago
, 222 I ll. App. 3d 862, 868 (1991) (holding that the plaintiff could alleg e a cause of action for neg lige nce ag ainst the City for failing to remove an unrea sonably dang erous median barr ier). Santelli distinguishes betw e e n a mu n ic ip a lity failing to undertake

an action and undertaking an action and neg lige ntly cre ating a dang erous situation. Santelli
, 2 2 2 I ll. App. 3d at 867. Fur thermore
, the City could have rer outed pedestria n tr af fi c o r provided a

n alternative walkwa

y . The burde n would have be en minimal. ¶ 19 We f

ind that de fenda

nt owed plaintiff a duty of car e under the circ umstances pr esente d here and the grant of summar y judgme nt is improper

. ¶ 20 Whether defe ndant brea ched its duty is a question of fac t for the trier of fac t. Deibert , 141 I ll. 2d at 435. It is for the trier of fac t to decide whether defe ndant fail ed t o ex er ci s e

rea sonable car e in protec ting p l aintiff from injury and whether such failure was the proxi mate cause of plaintiff’s injury

. “Whether in fac t the condition itself serve d as adequate notice of its prese nce or whether ad d i t i onal prec autions wer e require d to satisfy the defen d an t ’s duty are questions proper ly left to the trier of fac t.” W ard
, 136 I ll. 2d at 156. There fore
, even though a possessor of land may have a duty to an invitee, the possessor may not be liable to the invitee if the trier of fac t finds that the possessor exercised minimal car e. ¶ 21 T h re e s up re m e co u rt ca s es ar e i n s t ructive on this subject matter. In Deiber t , a subcontrac tor’s employee w as injured whe n he steppe d in a tire rut a fter e x iting a por table bathroom. Deibert
, 141 I ll. 2d at 432-33. The ruts wer e open and obvious. Deibert
, 141 I ll. 2d at 434. Howeve r, the em p l o y ee’ s attention was distracted; when he came out of the bathroom, he looked up beca use worke rs had, in the past, thrown plasterboa rd an d o t her construction materia ls off the near by balcony

. Deibert
, 141 I ll. 2d at 433. The supreme court

-6 -conclude d that the injury in Deibert was fore seea ble. Deibert
, 141 I ll. 2d at 438. In rea ching that conclusion, the c ourt noted that it was rea sonable to expect that the g ener al contra ctor

was awa re of worke rs throwingdebris off the balcony ; that it was awa re of the prese nce of
ruts on construction sites g ener ally and the prese nce of rut s o n t h at construction site in particula r; and that it was awa

re of wher e the portable bathrooms on the site wer e located and that people would fre quently walk in the are a around the bathrooms. Deibert
, 141 I ll. 2d at 439. The court further noted that the g ener al contra ctor was responsible for the condition (the worke rs di scar ding debris off t h e b alcony) t hat caused pl aintiff’s distrac tion. Deibert
, 141 I ll. 2d at 439. ¶ 22 In W

ard
, a customer was injured when he walked into a fi v e- fo o t -t al l co n crete post located just outside the exit of a home cente r section of a K mart store. W ard
, 136 I ll. 2d at 135-3 6

. At the t ime of t he inj ury , the custom er was carry ing in front of him a larg e mi rror that he had just purc hased from the store. W ard
, 136 I ll. 2d at 135. The supreme court held that the injury was rea sonably fore seea ble beca use the store invited its customers to use the door nea r which the plaintiff was injure d; the store had r eason to a nticipate that customer s would, even in the exercise of rea sonable car e, momentarily forg et the prese nce of the posts which they may have previously encounte red by enter ing throug h t he customer entra nce door; and it was also rea sonably fore seea ble that a custo m er carrying a larg e item just purcha sed i n the s tore mig ht be distracte d and fa il to see the post upon exit ing throug h the door. W ard
, 136 I ll. 2d at 153-54. Thus, W ard imposed a duty of car e on the s t o re even wher e a c ustomer cr eate d his own distraction. ¶ 23 In Rex road
, a high school student was injured when he fell in an are a under e x cavation in a parking lot located adjac ent to a high school football field. Rex roa d v. C i t y o f Springfield
, 207 I ll. 2d 33, 36 (2003). The hole was prev i o u sly barr icade d by the city worke rs; howeve r, the barr icade s wer e n o t i n p l ace at the time of the student’s injury

. Rex road
, 207 I ll. 2d at 37. The student had noticed the hole in the parking lot ear lier that day

. Rex road
, 207 I ll. 2d at 37. At the time of the injury
, the student was returning to the football field afte r taking a helmet from the locker room for one of the players. Rex road
, 207 I ll. 2d
at 37. He was distracted beca use he was “foc using his attention on the player who neede d the helmet.” Rex road
, 207 I ll. 2d at 37. The supreme court found that case to be simil ar to W ard and held that it was rea sonably fore seea ble that students may fail to avoid the risk posed by the hole by becoming distracted o r m o m entar ily forg etful. Rex road
, 207 I ll. 2d at 46. Rex road thus imposed liability on the city despite the fac t that the city did not cr ea t e t h e distraction. ¶ 24 The dissent and the trial court relied on Pr o s t r a n v. C i t y o f Chicago

. In Prostran , a visually handica

pped person walked on an are a that was a du g-u p s ection of wher e a sidewalk had been located. She was unable to clea rly observe the terra in ahea d of her but

co n t i n u ed t o walk in the area until she t ripped on piles of accumulated dirt and rocks. We reje cted plaintiff’s claim that the distraction exception applied bec a u s e th e r e w as no evidenc e of a d i s t ra cti on. Prostran
, 349 I ll. App. 3d at 88-89. Her e a jackhammer’s noise cause d plaintiff to trip on the base of a barr icade and this ty pe of distraction was fore seea b l e at a construction site, as is the fa ct that a use r of the side walk could trip a nd fall.

-7 -¶ 25 CONCLUSI ON

¶ 26 The plainti ff’s d eposition indicates that she fell over the base of a barr icade that was located on a sidewalk in a co nstruction are a afte r being distracted by the noise from a jackha mmer. We find that the City had a duty to exercise due car e and we reve rse the g rant of summary

judgme nt in favor of

the City

.

¶ 27 Reverse d and re manded.

¶ 28 J USTI CE GARCI A, dissenting: ¶ 29 I cannot agree with the majority t h at t h e “distrac tion exception” applies in this case. Supra ¶ 18. In addition, I disag ree with the m ajority ’s decision beca use i t would appea

r t o require the C ity to take every case to judgment whe re the plaintiff i n essenc e claims that a big- city -life noise, such as the sound of a jackha mmer, trig g ers the distraction exception to
an open a nd obvious dang er. ¶ 30 The supreme cou rt wa s very clea r in its consideration of the open and obvious rule in W ar d v. K ma rt Corp.
, 136 I ll. 2d 132 (1990). “The focus must be on defe ndant. A major

conce rn is whether defendant could rea sonably have fore seen injury to plaintiff.” (Emphasis in orig inal.) Id. at 148. In W ard
, the plaintiff won a jury verdic t for injuries he sustained when he walked into a concr ete post place d near the customer door as he exit ed the K mart store while car

rying a vision-obscuring bundle. Id. at 138. The circ uit court g rante d K mart judgme nt notwithstanding the jury ’s verdic t based on its lack of leg al duty to protec t the plaintiff ag ainst the risk of colliding with the post. Id

. at 139 The appellate court aff irmed in

a majority decision. Id. at 139. At t h e co n cl u s ion of a leng thy opinion, the supreme court reinstated the jury ’s ver dict. Id. at 157. ¶ 31 The supreme court was circ umspect in its decision: “W e m ay we l l h ave arr ived at a differ ent conclusion if the post would have be en loca ted furthe r aw ay

from the e ntranc e of the building, or if the plaintiff would not have been car rying any vision-obscuring bundle.” Id. at 153. The duty imposed on the defe n d ant arose from the risk that a customer may be “distrac ted or momentarily forg etful” of the pre s en ce of the posts located so close to the
entra nce of the s tore. Id. at 156. The plainti ff’ s distraction s temmed from the very activit y K mart desired–the plaintiff’s purcha se of an item from its store. As the court cautioned, its decision might have been differ ent had the plaintiff not been “ca rry ing any vision-obscuring bundle.” Id. at 153. In that event, the co n d i t i o n o f the exis tence of the posts might not be

unrea sonably dang erous as the supreme court explained: “[i] f people wh o are likely to encounte r a condition may be expected to take perf ectl y go o d ca re of themselves without further prec autions, then the condition is not unrea sonably dang erous beca use the likelihood of har m is sli g ht.” (Interna l quotation marks omitted.) Id. at 148. ¶ 32 In the instant case , the plaintiff’s claim is that she hear d the sound of the jackhammer in midstep, which cause d her to turn her head and misjudge the place ment of her elevated foot

as she stepped over the leg s of the barr icade
, which resulted in her fall. It is uncontested that the plaintiff alway s knew the barr icade s wer e pre sent; in fact, she safe ly stepped ove r one. It is also cer

tain the barr icade s wer e place d by the City to war n the plai n t i ff (and other

-8 -pedestria ns) of the dang erous condition that was prese nt. The prese nce of the barricade s g ave notice to the plaintiff that a dang erous condition exis ted to permit her to exercise rea sonable

car e in light of

the condition. ¶ 33 Given the clea r war ning provided by the barr icade s, I s ub m i t t h at u nder W ard the barr icade s wer e not unrea sonably dang erous, a conclusion in line with this court’s decision in Prostran v. City of Chicago
, 349 I ll. App. 3d 81 (2004), upon which the circ uit court relied
to g rant summ ary judgme nt to the C ity

. Keeping the focus on the def endant a s directe d by the W ard decision, the plaintiff fails to explain what “fur ther prec autions” t h e C i t y could have taken to have addre ssed the risk posed by the condition she complains about. Nor does
any case cited by the plaintiff support her contention that the “distrac tion exception” applies to the startling or

alar ming jac khammer noise that cause d her to misdirec t her vision. ¶ 34 In acc ord wit h W ard, the bar

rica des her e g ave “ adequa te war ning to [the plaintiff that] would suffice to rende r the condition ‘re asonably safe .’ ” W ard
, 1 3 6 I l l

. 2 d at 141; see Rex road v. City of Springfield
, 207 I ll. 2d 33, 46 (2003) (“D efe ndants could have guarde d
ag ainst the in

j u ry [caused by an open and obvious condition] simply by leaving the barr icade s in place .”). Clearly
, the City had no duty to “r em o v e al l d ang ers” from the sidewalk in order to avoid liability

. W ard
, 136 I ll. 2d at 1 4 2

. T h i s i s true beca use “the obviousness of a condition is also rele vant to the exis tence of a duty on the p art of defe ndant.” Id. at 143. As the supreme court explained, “The crux of the issue *** is whether defe ndant’s gene ral duty of re asonable car e extended to t he risk encounte red by plaintiff.” Id. at 145. ¶ 35 It is at the crux of t he is sue of whether the defendant’s ge nera l duty of reasonable car e extended to the risk encounte red by plaintiff here that her case falls apar t. The risk posed by the condition (pre sumably the prese nce of the barr icade s) under the City ’s control rema ined
t h e s am e with or without the startling noise of the jackhammer. The plaintiff succe ssfu l l y stepped over the leg s of the first barricade

. As she looked at the leg s of the second barr icade
, the s tartling noise cause d her to turn her h ea d, misstep, and fall. As we noted in Prostran
, the plaintiff could have chosen to walk around the leg s of the barr icade rathe r then step over them or she could have crosse d the street to have avoided the barr i ca d es al l t o g ether

. Prostran
, 349 I ll. App. 3d at 88. As our supreme court observe d, it would be impossibl e for the City to rende r the stre ets “injury-proof .” W ard , 136 I ll. 2d at 156. ¶ 36 Whil e the majority conclude s that under its duty analy sis t h e b u rd en upon the City to extend the City ’s g ener al duty of rea sonable car e to the risk of the plaintiff turning her head in midstep beca

use she hear d the sound of a jackhammer “would have been minimal” ( supra ¶ 18), I conclude that the action the City took was all the law require d–it posted the barr icade to g ive notice of an open and obvious da ng er. Indeed, it is ironic that the very act of g iving notice of an open and obvious dang er now serve s, under the majority ’s view, as the basis to expose the City

to possible liabili ty

for its claimed ne g lige nce. ¶ 37 Acc epting the majority ’s position that the condi t i o n en countered by the plaintiff was

unrea sonably dan g e r o u s , I submit that the “distrac tion exception” to impose possible liability

o n the City for the plaintiff’s injuries did not arise from that which the City d i d n o t control–an alar

ming noise (fr om who knows wher e) that unquestionably cause d the plaintiff

-9 -to misstep as she trave rsed the leg s of the second barr icade

. Unlike the majority
, I find it to

be no “minimal” burden to require the City to have anticipated the plaintiff’s misstep cause d by a startling noise from some unknown source , whi ch wo u l d forc e the City to take additional prec autions beyond the place ment of the ba rrica des themselves. ¶ 38 In sum, I agree with the City that the distraction exception under W ard does not apply in this case ; in line with our decision in Prostran
, I would aff irm summary j u d gment for the City . Acc ording ly , I

dissent.

-1

0 -