ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

NORMA WATERS, Plaintiff-Appellant, v. THE CITY OF CHICAGO,

a Municipal Corporation, Defendant-Appellee.

 District & No. First District, Sixth Division

Docket No. 1-10-0759

Filed

Rehearing denied

March 2, 2012

April 9, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Summary judgment for defendant city was reversed in an action for the

injuries suffered by plaintiff when she tripped over the base of a street

barricade when she was startled by the noise of a jackhammer from a

nearby construction site, notwithstanding the city’s contention that the

barricades were an open and obvious condition and that the distraction

exception did not apply, since the city could have rerouted pedestrian

traffic or provided an alternative walkway, the burden would have been

minimal and the grant of summary judgment was improper where the city

owed a duty of care to plaintiff under the circumstances.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 06-L-7932; the Hon.

Eileen M. Brewer, Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

Francis Patrick Murphy, of Corboy & Demetrio, P.C., of Chicago, for

appellant.

Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth

Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant

Corporation Counsel, of counsel), for appellee.

Panel PRESIDING JUSTICE R. GORDON delivered the judgment ofthe court,

with opinion.

Justice Palmer concurred in the judgment and opinion. *

Justice Garcia dissented, with opinion.

OPINION

¶ 1 Plaintiff Norma Waters appeals from the circuit court’s grant of summary judgment to

defendant City of Chicago (City) in her personal injurysuit charging the Citywith negligence

in maintaining a street barricade over a sidewalk. The plaintiff was injured when she tripped

over the metal base of a street barricade upon being startled by the sudden noise of a

jackhammer from a nearby construction site. The plaintiff contends the circuit court erred in

granting summary judgment because two questions of fact remain: (1) whether the barricade

she tripped over was an open and obvious condition, and (2) whetherthe defendant owed the

plaintiff a duty of care under the distraction exception. We reverse.

¶ 2 BACKGROUND

¶ 3 The following facts were presented to the circuit court in pleadings, affidavits,

photographs, admissions on file, a map, and in plaintiff’s deposition. On August 22, 2005,

the 72-year-old plaintiff was injured in a fall at the intersection of Milwaukee and Higgins

Avenues in Chicago. Earlier, the plaintiff had walked on a sidewalk northwest along the east

side of Milwaukee Avenue from her home at 4663 North MilwaukeeAvenue. She eventually

crossed to the west side of Milwaukee to stop at her bank and then at a McDonald’s. She

then began her return trip, walking in a southern direction on the sidewalk on the west side

of Milwaukee back to Higgins Ave.

¶ 4 At the intersection of Milwaukee and Higgins, the plaintiff came upon street barricades

at the crosswalk. The barricades had “metal barriers” at the bottom, which served as legs for

the barricade structure. The metal base was “sticking out in the crossway.” The plaintiff

Justice Cahill served on the panel at the time of oral arguments. Justice Palmer replaced *

Justice Cahill following Justice Cahill’s death on December 4, 2011.

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stepped over two of the metal bases. At her deposition, she testified: “[A]sIwas starting over

the third barrier, I heard a huge bang. And I turned my head just that second and down I

went. I was so distracted. It was so noisy.” After falling, the plaintiff saw that the source of

the noise was a jackhammer being operated by a construction worker about 12 to 15 feet

away from her. The plaintiff sustained an injury to her wrist in the fall, which required

surgery.

¶ 5 The circuit court granted the City’s motion for summary judgment. The court ruled that

the condition of the barricades was open and obvious and that the distraction exception did

not apply to impose a duty of care on the City.

¶ 6 ANALYSIS

¶ 7 Summaryjudgment is onlyappropriate when the pleadings, depositions, admissions, and

affidavits on file, viewed in the light most favorable to the nonmovant, show that no genuine

issue of material fact exists and that the moving party is entitled to judgment as a matter of

law. 735 ILCS 5/2-1005(c) (West 2004); Sollami v. Eaton, 201 Ill. 2d 1, 6 (2002); Clifford

v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 39-40 (2004). Summary judgment

is a drastic means of disposing of litigation and should only be allowed when the right of the

moving party to judgment is clear and free from doubt. Sandoval v. City of Chicago, 357 Ill.

App. 3d 1023, 1027 (2005). If reasonable people can draw different inferences from

undisputed facts, then summary judgment is inappropriate. Williams v. Manchester, 228 Ill.

2d 404, 417 (2008). The court should construe the evidence strictly against the movant and

liberally in favor of the opponent. Williams, 228 Ill. 2d at 417.

¶ 8 On a motion for summary judgment, the trial court has “a duty to construe the record

strictly against the movant and liberally in favor of the nonmoving party.” Jackson v. TLC

Associates, Inc., 185 Ill. 2d 418, 423-24 (1998). As a result, summary judgment is not

appropriate: (1) if “there is a dispute as to a material fact” (Jackson, 185 Ill. 2d at 424); (2)

if “reasonable persons could draw divergent inferences from undisputed material facts”

(Jackson, 185 Ill. 2d at 424); or (3) if “reasonable persons could differ on the weight to be

given the relevant factors” of a legal standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247,

269 (2007)). We review a grant of summary judgment de novo. Golden Rule Insurance Co.

v. Schwartz, 203 Ill. 2d 456 (2003); Pritza v. Village of Lansing, 405 Ill. App. 3d 634, 641

(2010). De novo consideration means we perform the same analysis that a trial judge would

perform and give no deference to the judge’s conclusions or specific rationale. Khan v. BDO

Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 9 The sole issue in this case is whether the defendant had a duty to use due care. Our

analysis begins with a review of sections 343 and 343A of the Restatement (Second) of

Torts, which has been adopted by Illinois and is part of the analysis of a “fall down” accident.

Section 343 provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by

a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and

should realize that it involves an unreasonable risk of harm to invitees, and

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(b) should expect that they will not discover or realize the danger, or will fail to

protect themselves against it, and

(c) fails to exercise reasonable care to protect them against danger.” Restatement

(Second) of Torts § 343 (1965).

¶ 10 Section 343 should be read together with section 343A (Restatement (Second) of Torts

§ 343 cmt. a (1965)), which provides the following “known or obvious” exception to the

liability of a possessor of land under section 343:

“A possessor of land is not liable to his invitees for physical harm caused to them by any

activity or condition on the land whose danger is known or obvious to them, unless the

possessor should anticipate the harm despite such knowledge or obviousness.”

Restatement (Second) of Torts § 343A (1965).

¶ 11 The plaintiff argues that the circuit court erred in its grant of summary judgment because

whether the condition was open and obvious and whether a distraction exception applies are

both questions of fact for a trier of fact to answer. To support the assertion as to the open and

obvious issue, the plaintiff offers the following quote. “Whether in fact the condition itself

served as adequate notice of its presence, or whether additional precautions were required

to satisfy the defendant’s duty, are questions properly left to the trier of fact.” Ward v. K mart

Corp., 136 Ill. 2d 132, 156 (1990). In her main brief, the plaintiff asserts, “The determination

of whether a condition is open and obvious does not submit itself to summary judgment.” As

to the application of the distraction exception, the plaintiff asserts, “There is no dispute that

Ms. Waters says she was distracted. Whether her distraction is credible or sufficient to meet

the distraction exception is a question for the trier of fact.”

¶ 12 The City replies, in pertinent part, that it had no duty to plaintiff because the barricades

were 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 “fall

down” accident based on common law negligence are the existence of a duty and an injury

proximately caused by that breach. Ward, 136 Ill. 2d at 140; Clifford, 353 Ill. App. 3d at 37.

Generally, a duty of care arises where the parties stand in such a relationship to one another

that the law imposes upon the defendant an obligation of reasonable conduct for the benefit

of the plaintiff. Ward, 136 Ill. 2d at 140. Whether a defendant owes a plaintiff a duty of care

is usually a question of law to be decided by the court. Ward, 136 Ill. 2d at 140. In making

this determination, the court is to consider the following factors: (1) the foreseeability of the

injury; (2) the likelihood of the injury; (3) the magnitude of the burden on the defendant of

guarding against the injury; and (4) the consequences of placing the burden on the defendant.

Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 438 (1990). Where no duty

exists, the plaintiff cannot recover. Schoenbeck v. Du Page Water Comm’n, 240 Ill. App. 3d

1045, 1048 (1993). Our supreme court has held that once a court finds that a danger is open

and obvious, the court’s analysis is not “complete” until it has analyzed these four

“traditional factors.” Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 425 (1998).

¶ 13 It is axiomatic that no legal duty arises unless the harm is reasonably foreseeable. See

Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 354-55 (1977). Where as here a plaintiff

alleges that she was injured by a condition on a defendant’s property, we decide the

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foreseeability prong of the Illinois common law duty test by references to sections 343 and

343A of the Restatement. Lafever v. Kemlite Co., 185 Ill. 2d 380, 389 (1998); Dreibert, 141

Ill. 2d at 438.

¶ 14 As our Illinois Supreme Court has held, “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. 2d 435, 447-48 (1996). One of the exceptions to this general rule is the

“distraction exception” illustrated in comment f to section 343A, which states:

“There are, however, cases in which the possessor of land can and should anticipate that

the dangerous conditions will cause physical harm to the invitee notwithstanding its

known or obvious danger. In such cases the possessor is not relieved of the duty of

reasonable care which he owes to the invitee for his protection. This duty may require

him to warn the invitee or to take other reasonable steps to protect him, against the

known or obvious condition or activity, if the possessor has reason to expect that the

invitee will nevertheless suffer physical harm.

Such reason to expect harm to the visitor from known or obvious dangers may arise,

for example, where the 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 he has

discovered, or fail to protect himself against it. Such reason may also arise where the

possessor 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. In such cases the fact that the danger is known, or

obvious, is important in determining whether the invitee is to be charged with

contributory negligence or assumption of risk. (See §§ 466 and 469D.) It is not, however,

conclusive in determining the duty of the possessor, or whether he has acted reasonably

under the circumstances.” Restatement (Second) of Torts § 343A cmt. f (1965).

¶ 15 The distraction exception involves a situation where a possessor of land should anticipate

the harm because it has reason to expect that the invitee’s attention may be distracted, so that

the invitee would not discover the condition despite its obviousness or will forget what he

has discovered and fail to protect against it. Deibert, 141 Ill. 2d at 437, 439-40 (citing

Restatement (Second) of Torts § 343A cmt. f (1965)); Ward, 136 Ill. 2d at 153-55. Thus, the

distraction exception generally involves a situation where the injured party was distracted

from the open and obvious condition because circumstances required him or her to focus on

some other condition or hazard. True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676,

680 (2000).

¶ 16 We find plaintiff’s argument that the question of whether the barricades were open and

obvious is a question of fact for the trier of fact not persuasive. We further find that

plaintiff’s argument that whether the distraction exception is applicable is also a question of

fact to be decided by the trier of fact not persuasive. However, we agree with plaintiff that

the court’s grant of summary judgment here is improper.

¶ 17 Based on plaintiff’s deposition testimony, the barricades and their bases were not

concealed or hidden in any way. Plaintiff was carefully walking and had walked past a

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barricade when the sound of the jackhammer distracted her causing her to trip over the base

of the third barricade. The barricade and its base fell within the definition of “obvious” as

set forth in comment b to section 343A of the Restatement. Our conclusion here does not

mean that all barricades and their bases on construction sites are obvious as a matter of law.

¶ 18 However, despite the obviousness of the barricade and its base, plaintiff became

distracted upon hearing the loud noise from the jackhammer. Defendant created the hazard

but not the distraction. It is reasonable to expect that a defendant who places a barricade over

a sidewalk and places a portion of their bases in an area of ingress and egress on a public

sidewalk without signs warning people to avoid walking in the area could foresee that people

could reasonably become injured and would likely become injured if they used the walkway.

It can also be reasonably expected that people would walk on the sidewalk notwithstanding

its partial barricade. For these reasons, we cannot say, as a matter of law, that defendant

should not have reasonably anticipated the distraction and should not have foreseen the

injury to plaintiff. It would have been easy for the defendant to have barricaded the entire

walkway so that no one could use it until the construction was complete and the

consequences of doing so would not have placed any great burden on the defendant. The

defendant City is shielded from liability for failing to erect barricades or provide warnings.

Prostran v. City of Chicago, 349 Ill. App. 3d 81 (2004). However, once the City places

barricades, it is not shielded from liability when barricades are placed negligently. 745 ILCS

10/3-104 (West 2004) (stating that public entities are not liable for injuries caused by “the

failure to initially provide” warnings, signals, or barricades (emphasis added)). See also

Santelli v. City of Chicago, 222 Ill. App. 3d 862, 868 (1991) (holding that the plaintiff could

allege a cause of action for negligence against the City for failing to remove an unreasonably

dangerous median barrier). Santelli distinguishes between amunicipalityfailing to undertake

an action and undertaking an action and negligently creating a dangerous situation. Santelli,

222 Ill. App. 3d at 867. Furthermore, the City could have rerouted pedestrian traffic or

provided an alternative walkway. The burden would have been minimal.

¶ 19 We find that defendant owed plaintiff a duty of care under the circumstances presented

here and the grant of summary judgment is improper.

¶ 20 Whether defendant breached its duty is a question of fact for the trier of fact. Deibert, 141

Ill. 2d at 435. It is for the trier of fact to decide whether defendant failed to exercise

reasonable care in protecting plaintiff from injury and whether such failure was the

proximate cause of plaintiff’s injury. “Whether in fact the condition itself served as adequate

notice of its presence or whether additional precautions were required to satisfy the

defendant’s duty are questions properly left to the trier of fact.” Ward, 136 Ill. 2d at 156.

Therefore, 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 fact finds that the possessor exercised minimal care.

¶ 21 Three supreme court cases are instructive on this subject matter. In Deibert, a

subcontractor’s employee was injured when he stepped in a tire rut after exiting a portable

bathroom. Deibert, 141 Ill. 2d at 432-33. The ruts were open and obvious. Deibert, 141 Ill.

2d at 434. However, the employee’s attention was distracted; when he came out of the

bathroom, he looked up because workers had, in the past, thrown plasterboard and other

construction materials off the nearby balcony. Deibert, 141 Ill. 2d at 433. The supreme court

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concluded that the injury in Deibert was foreseeable. Deibert, 141 Ill. 2d at 438. In reaching

that conclusion, the court noted that it was reasonable to expect that the general contractor

was aware of workers throwing debris off the balcony; that it was aware of the presence of

ruts on construction sites generally and the presence of ruts on that construction site in

particular; and that it was aware of where the portable bathrooms on the site were located and

that people would frequently walk in the area around the bathrooms. Deibert, 141 Ill. 2d at

439. The court further noted that the general contractor was responsible for the condition (the

workers discarding debris off the balcony) that caused plaintiff’s distraction. Deibert, 141

Ill. 2d at 439.

¶ 22 In Ward, a customer was injured when he walked into a five-foot-tall concrete post

located just outside the exit of a home center section of a K mart store. Ward, 136 Ill. 2d at

135-36. At the time of the injury, the customer was carrying in front of him a large mirror

that he had just purchased from the store. Ward, 136 Ill. 2d at 135. The supreme court held

that the injury was reasonably foreseeable because the store invited its customers to use the

door near which the plaintiff was injured; the store had reason to anticipate that customers

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; and it was also reasonably foreseeable that a customer carrying a large item just

purchased in the store might be distracted and fail to see the post upon exiting through the

door. Ward, 136 Ill. 2d at 153-54. Thus, Ward imposed a duty of care on the store even

where a customer created his own distraction.

¶ 23 In Rexroad, a high school student was injured when he fell in an area under excavation

in a parking lot located adjacent to a high school football field. Rexroad v. City of

Springfield, 207 Ill. 2d 33, 36 (2003). The hole was previously barricaded by the city

workers; however, the barricades were not in place at the time of the student’s injury.

Rexroad, 207 Ill. 2d at 37. The student had noticed the hole in the parking lot earlier that day.

Rexroad, 207 Ill. 2d at 37. At the time of the injury, the student was returning to the football

field after taking a helmet from the locker room for one of the players. Rexroad, 207 Ill. 2d

at 37. He was distracted because he was “focusing his attention on the player who needed the

helmet.” Rexroad, 207 Ill. 2d at 37. The supreme court found that case to be similar to Ward

and held that it was reasonably foreseeable that students may fail to avoid the risk posed by

the hole by becoming distracted or momentarily forgetful. Rexroad, 207 Ill. 2d at 46.

Rexroad thus imposed liability on the city despite the fact that the city did not create the

distraction.

¶ 24 The dissent and the trial court relied on Prostran v. City of Chicago. In Prostran, a

visually handicapped person walked on an area that was a dug-up section of where a

sidewalk had been located. She was unable to clearly observe the terrain ahead of her but

continued to walk in the area until she tripped on piles of accumulated dirt and rocks. We

rejected plaintiff’s claim that the distraction exception applied because therewas no evidence

of a distraction. Prostran, 349 Ill. App. 3d at 88-89. Here a jackhammer’s noise caused

plaintiff to trip on the base of a barricade and this type of distraction was foreseeable at a

construction site, as is the fact that a user of the sidewalk could trip and fall.

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¶ 25 CONCLUSION

¶ 26 The plaintiff’s deposition indicates that she fell over the base of a barricade that was

located on a sidewalk in a construction area after being distracted by the noise from a

jackhammer. We find that the City had a duty to exercise due care and we reverse the grant

of summary judgment in favor of the City.

¶ 27 Reversed and remanded.

¶ 28 JUSTICE GARCIA, dissenting:

¶ 29 I cannot agree with the majority that the “distraction exception” applies in this case.

Supra ¶ 18. In addition, I disagree with the majority’s decision because it would appear to

require the City to take every case to judgment where the plaintiff in essence claims that a

big-city-life noise, such as the sound of a jackhammer, triggers the distraction exception to

an open and obvious danger.

¶ 30 The supreme court was very clear in its consideration of the open and obvious rule in

Ward v. K mart Corp., 136 Ill. 2d 132 (1990). “The focus must be on defendant. A major

concern is whether defendant could reasonably have foreseen injury to plaintiff.” (Emphasis

in original.) Id. at 148. In Ward, the plaintiff won a jury verdict for injuries he sustained

when he walked into a concrete post placed near the customer door as he exited the K mart

store while carrying a vision-obscuring bundle. Id. at 138. The circuit court granted K mart

judgment notwithstanding the jury’s verdict based on its lack of legal duty to protect the

plaintiff against the risk of colliding with the post. Id. at 139 The appellate court affirmed in

a majority decision. Id. at 139. At the conclusion of a lengthy opinion, the supreme court

reinstated the jury’s verdict. Id. at 157.

¶ 31 The supreme court was circumspect in its decision: “We may well have arrived at a

different conclusion if the post would have been located further away from the entrance of

the building, or if the plaintiff would not have been carrying any vision-obscuring bundle.”

Id. at 153. The duty imposed on the defendant arose from the risk that a customer may be

“distracted or momentarily forgetful” of the presence of the posts located so close to the

entrance of the store. Id. at 156. The plaintiff’s distraction stemmed from the very activity

K mart desired–the plaintiff’s purchase of an item from its store. As the court cautioned, its

decision might have been different had the plaintiff not been “carrying any vision-obscuring

bundle.” Id. at 153. In that event, the condition of the existence of the posts might not be

unreasonably dangerous as the supreme court explained: “[i]f people who are likely to

encounter a condition may be expected to take perfectly good care of themselves without

further precautions, then the condition is not unreasonably dangerous because the likelihood

of harm is slight.” (Internal quotation marks omitted.) Id. at 148.

¶ 32 In the instant case, the plaintiff’s claim is that she heard the sound of the jackhammer in

midstep, which caused her to turn her head and misjudge the placement of her elevated foot

as she stepped over the legs of the barricade, which resulted in her fall. It is uncontested that

the plaintiff always knew the barricades were present; in fact, she safely stepped over one.

It is also certain the barricades were placed by the City to warn the plaintiff (and other

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pedestrians) of the dangerous condition that was present. The presence of the barricades gave

notice to the plaintiff that a dangerous condition existed to permit her to exercise reasonable

care in light of the condition.

¶ 33 Given the clear warning provided by the barricades, I submit that under Ward the

barricades were not unreasonably dangerous, a conclusion in line with this court’s decision

in Prostran v. City of Chicago, 349 Ill. App. 3d 81 (2004), upon which the circuit court relied

to grant summary judgment to the City. Keeping the focus on the defendant as directed by

the Ward decision, the plaintiff fails to explain what “further precautions” the City could

have taken to have addressed the risk posed by the condition she complains about. Nor does

any case cited by the plaintiff support her contention that the “distraction exception” applies

to the startling or alarming jackhammer noise that caused her to misdirect her vision.

¶ 34 In accord with Ward, the barricades here gave “adequate warning to [the plaintiff that]

would suffice to render the condition ‘reasonably safe.’ ” Ward, 136 Ill. 2d at 141; see

Rexroad v. City of Springfield, 207 Ill. 2d 33, 46 (2003) (“Defendants could have guarded

against the injury [caused by an open and obvious condition] simply by leaving the

barricades in place.”). Clearly, the City had no duty to “remove all dangers” from the

sidewalk in order to avoid liability. Ward, 136 Ill. 2d at 142. This is true because “the

obviousness of a condition is also relevant to the existence of a duty on the part of

defendant.” Id. at 143. As the supreme court explained, “The crux of the issue *** is whether

defendant’s general duty of reasonable care extended to the risk encountered by plaintiff.”

Id. at 145.

¶ 35 It is at the crux of the issue of whether the defendant’s general duty of reasonable care

extended to the risk encountered by plaintiff here that her case falls apart. The risk posed by

the condition (presumably the presence of the barricades) under the City’s control remained

the same with or without the startling noise of the jackhammer. The plaintiff successfully

stepped over the legs of the first barricade. As she looked at the legs of the second barricade,

the startling noise caused her to turn her head, misstep, and fall. As we noted in Prostran,

the plaintiff could have chosen to walk around the legs of the barricade rather then step over

them or she could have crossed the street to have avoided the barricades all together.

Prostran, 349 Ill. App. 3d at 88. As our supreme court observed, it would be impossible for

the City to render the streets “injury-proof.” Ward, 136 Ill. 2d at 156.

¶ 36 While the majority concludes that under its duty analysis the burden upon the City to

extend the City’s general duty of reasonable care to the risk of the plaintiff turning her head

in midstep because she heard the sound of a jackhammer “would have been minimal” (supra

¶ 18), I conclude that the action the City took was all the law required–it posted the barricade

to give notice of an open and obvious danger. Indeed, it is ironic that the very act of giving

notice of an open and obvious danger now serves, under the majority’s view, as the basis to

expose the City to possible liability for its claimed negligence.

¶ 37 Accepting the majority’s position that the condition encountered by the plaintiff was

unreasonablydangerous, Isubmit that the “distraction exception” to impose possible liability

on the City for the plaintiff’s injuries did not arise from that which the City did not

control–an alarming noise (from who knows where) that unquestionably caused the plaintiff

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to misstep as she traversed the legs of the second barricade. Unlike the majority, I find it to

be no “minimal” burden to require the City to have anticipated the plaintiff’s misstep caused

by a startling noise from some unknown source, which would force the City to take

additional precautions beyond the placement of the barricades themselves.

¶ 38 In sum, I agree with the City that the distraction exception under Ward does not apply in

this case; in line with our decision in Prostran, I would affirm summary judgment for the

City. Accordingly, I dissent.

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