NOTICE Decision filed 09/2 3/13

. The tex t of this decision may be chang ed or

corr ected prior to the filing of a P et i t i on f or Rehea ring or t he disposition of th e same. 2013 IL App (5th) 130094
NO. 5-13-0094
IN THE APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT

VIRGINIA BRUNS, ) Appeal f rom the ) Circuit Court of Plaintif f -Appellant, ) Marion County

. ) v. ) No. 12-L-21 ) THE CITY OF CENTRALIA, ILLINOIS, ) a Municipal Corporation, ) Honorable ) Michael D. McHaney , Def endant-Appellee. ) Judge, presiding.
JUSTICE CATES delivered the judgm ent of the court, with opinion. Justices W elch and Stewart concurred in the judgment and opinion.
OPINION ¶ 1 P l a i n t i ff, V irginia Bruns, sought dam ages f rom def endant, the City of Centralia ( C i t y ) , f or personal injuries sustained af ter tripping over a raised section of a public sidewalk. The circuit c ourt of Marion County granted the City 's m otion f or sum m ary judgm ent af ter determ ining that the City owed no duty to plaintif f

. Plaintif f appeals the grant of sum m ary judgm ent in f

avor of the City . W e reverse and remand. ¶ 2 On March 27, 2012, plaintif f intended to enter the Centralia Ey e Clinic (Clinic) (now doing business as Ey ecare Management, LLC) for a scheduled appointment. On that date, the weather was clear, and nobody else was walking on the sidewalk in f ront of the Clinic.
As plaintif

f approached the Clinic, she tripped over a raised section of sidewalk that was part of the path used to access the f ront entrance to the Clinic. A large tree stands adjacent to the sidewalk, and over tim e, its root sy stem caused a concrete section of the sidewalk to crack

1and heave, creating an uneven pathway

. At the tim e of plaintif f 's f all, the cracked sidewalk

was raised som e three inches above the adjacent concrete slabs and grass. T h e C l i n ic had previously contacted the City to report the def ective condition, and at one point, even of f ered

to have the tree rem oved at the Clinic's expense. In f act, at least a y ear prior to plaintif f 's f all, the Clinic had reported that another person had tripp e d as a result of the raised sidewalk. Despite knowl e d g e o f t h e dangerous condition of the sidewalk, the City 's tree com m ittee considered the tree to have historic signif icance and ref

used rem oval. ¶ 3 At the tim e of her f all, plaintif

f was 80 y ears old and had been a patient of the Clinic since Decem

ber of 2011. She was being treated f or various e y e p r o b l em s, including irritation, pain in her ey es, and blurry and reduced vision. During past visits, plaintif f parked

on the street and routinely walked along the sam e sidewalk on her way to the entrance of the Clinic. Each tim e, she had noticed the sidewalk def ect and considered it to be "an accident waiting to happen." At the tim e of her f all, plaintif

f was not looking down at the sidewalk. Instead, she was looking toward the Clinic door and steps where she was intending to enter. Because her attention was f ixed on the Clinic's entrance, she did not notice the crack i n the sidewalk. She stubbed her right f oot on the crack and f

el l

. I n t ry ing to catch herself , she severely injured her shoulder and arm. ¶ 4 The public works f orem an f or the C i t y t e s t i f

i e d t h a t the sidewalk was a danger to pedestrians and was hazardous at the tim e of plaintif f 's f all. He also recognized that not all pedestrians look down all of the tim e as they

are walking. He also acknowledged the duty of a city , in general, to use reasonable care to keep its sidewalks in good repair, and f urther acknowledged that if the City were aware of the condition of this particular sidewalk, it was unacceptable f

or the City

not to have rem edied the def ect. ¶ 5 The court determ ined that the sidewalk def ect at issue here was open and obvious as

a m atter of law and that the distraction exception was inapplicable under the circum stances

2presented. Specif ically , the court stated that "the m ere existence of an entrance, and/or steps leading up to it, would provide a universal distraction exception to the o p e n a n d o b vious doctrine. Such an expansion of Illinois negligence law m ust only com e f

rom the legislature or a higher court." Accordingly , the court entered summ ary judgm ent in f

avor the City

. ¶ 6 Sum m ary judgm ent is appropriate when th e p l e a d i n g s , af f idavits, depositions, and adm issions on f

ile, vi e w e d i n t h e light m ost f avorable to the nonm oving party , reveal that th e r e i s no genuine issue of m aterial f act and that the m oving party is entitled to judgm ent

as a ma t ter of law. 735 ILCS 5/2-1005(c) (W est 2012); see also Sollami v. Eaton , 201 Ill. 2d 1, 6, 772 N.E.2d 215, 218 (2002). Sum m ary judgm ent is a drastic m eans of disposing of litigation and should be allowed only when the right of the m oving party is c l e a r and f ree f r o m doubt. Harris v. Old Kent Bank , 315 Ill. App. 3d 894, 899, 735 N.E.2d 758, 7 6 2 (2000). The purpose of sum m ary judgm ent is not to try a q u estion of f act, but, rather, to determ ine if one exists. Kleiber v. Freeport Farm & Fleet, Inc ., 406 Ill. App. 3d 249, 255, 942 N.E.2d 640, 646 (2010). In determ ining whether genuine issues of m aterial f

act exist,

we vie w t h e f

a c t u al record in the light m ost f avorable to the nonm oving party

. United National Insuranc e Co. v. Faure Brothers Corp ., 409 Ill. App. 3d 711, 716, 949 N.E.2d 1185, 1190 (2011). Moreover, sum m ary judgm ent should not be granted if it is possible to draw m ore than one reasonable inf erence f rom undisputed f

acts. Buchaklian v. Lake County Family Y oung Men's Christian Ass'n , 314 Ill. App. 3d 195, 199, 732 N.E.2d 596, 599 (2000).
Sum m ary judgm ent should not be granted unless the m oving party 's right to a jud g me n t i s "clear and f

ree f rom doubt." (Internal quotation m arks om itted.) Buchaklian , 314 Ill. App. 3d at 199, 732 N.E.2d at 598-99. Our review of a trial court's grant of sum m ary judgm ent is de novo
. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992); Morietta v. Reese Construction Co. , 347 Ill. App. 3d 1077, 1080, 808 N.E.2d 1046, 1049 (2004).

3¶ 7 Plaintif f argues on appeal that the City owed her a duty of reasonable care as to the condition of

its sidewalk. Every one agrees that the crack in the sidewalk at issue here was
open and obvious as a m atter of law. Plaintif f contends, however, that such a f act is only the beginning of

determ ining whether there existed a legal duty

. ¶ 8 The essential elem ents of a cause of action based on com m on law negligence are the existence of a duty owed by the def endant to the plaintif

f , breach of that duty , and an injury proxim ately caused by that breach. W ard v. K mart Corp. , 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). W hether a def endant owes a plaintif

f a duty of care is usually

a question of law to be decided by

the court. W

ard , 136 Ill. 2d at 140, 554 N.E.2d at 226. In m aking this determ ination, the court should consider the f oreseeability

of the injury , the likelihood of the injury , the m agnitude of the burden on the def endant of guarding aga i n st the injury , and the consequences of placing the burden on the def endant. Clifford v. W

harton Business Group, L.L.C. , 353 Ill. App. 3d 34, 40, 817 N.E.2d 1207, 1213 (2004). ¶ 9 In general, a party that owns, controls, or m ai ntains property has a duty to m aintain the prem ises in a reasonably saf e condition. W

ard , 136 Ill. 2d at 141, 554 N

. E

. 2 d at 227. Any dangerous condition, theref ore, m ust be rem oved or corrected, or a warning to invitees who m ight encounter the danger m ust be provided. W

ard , 136 Ill. 2d at 141-42, 554 N.E.2d

at 227. However, a property owner is generally under no obligation to guard against injury f rom open a n d o b v i o us dangers. W ard , 136 Ill. 2d at 142, 554 N.E.2d at 227. Open and obvious conditions are conditions and risks which are apparent to and would be recognized by reasonable people exercising ordinary perception, intelligence, and judgm ent in visiting the area. S

a n d oval v. City of Chicago , 357 Ill. App. 3d 1023, 1028, 830 N.E.2d 722, 727 (2005). Property owners are no t e x p e c t e d to f oresee an injury f

rom an open and obvious danger ( Bucheleres v. Chicago Park District , 171 Ill. 2d 435, 447-48, 665 N.E.2d 826, 832 (1996)), because property owners are entitled to the expectation that those who enter upon

4their property will exercise reasonable care f or their own saf

ety ( Sandoval , 357 Ill. App. 3d at 1028, 830 N.E.2d at 727). ¶ 10 O u r courts have also recognized a "distraction" exception to the open and o b v i o u s danger rule grou n d e d i n f oreseeability

. See W

ard v. K mart Corp. , 136 Ill. 2d 132, 554 N.E.2d 223 (1990). The exception applies when there i s r e a s o n t o expect that a plaintif f 's attention m ay be distracted f rom the open and obvious condition because circum stances required him or her to f

ocus on som e other condition to the extent that he or she will f orget the hazard that has already been discovered. Clifford , 353 Ill. App. 3d at 42-43, 817 N.E.2d

at 1215. Under such circum stances, property owners owe a duty to exercise reasonable care
to protect invitees f

rom harm in spite of the open and obvious nature of the danger. Rexroad v. City of Springfield , 207 Ill. 2d 33, 796 N.E.2d 1040 (2003). ¶ 11 In th i s i n s t a n c e , t h e t r i a l c o u rt concluded that in order to apply the distraction exception to im

pose a duty upon the City , the City had to have created, contributed to, or was responsible in som e way f or the distraction which diverted plaintif f 's attention f

rom the open and obvious condition, thereby charging the City with the reasonable foreseeability that an injury m ight occur. See Sandoval , 357 Ill. App. 3d at 1030, 830 N.E.2d at 729. As plaintif f correctly contends, however, the key question is the f

oreseeability of the likelihood that an individual's attention m ay be distracted f rom the open and obvious condition, not the creation of the distraction. For instance, in Rexroad , the court reversed sum m ary judgm ent in f avor of the City of Spr i n g f

i e l d when a high school m anager of a f ootball team stepped into an unbarricaded hole. The student testif ied that he was distracted f rom the hole because of his f ocus on carry ing a f

ootball helm et to the play er who needed it. The helmet was related to the team , but clearly the City of Springf ield did not create, contribut e t o , o r cause the distraction which diverted the student's attention. Rexroad , 207 Ill. 2d 33, 796 N.E.2d 1040;

see also Clifford , 353 Ill. App. 3d at 45, 817 N.E.2d at 1 2 1 6-17 (proof not required that

5possessor of land created or had control over distraction, nor is proof required that hazardous

condition was created by

possessor of

land). ¶ 12 W e believe the situation here is closer to that f ound in Harris v. Old Kent Bank , 315 Ill. App. 3d 894, 735 N.E.2d 758 (2000). In Harris , an elderly patron of the bank sued f

or injuries sustained when she tripped and f ell on a slightly raised sidewalk panel between the bank and the parking lot. W hile the f ocus of the court's opinion was on the de minimis rule regarding def

ective sidewalks, the underly ing reasoning is just as applicable here. Sum m ary judgm ent in f

avor of the bank was r e versed af ter noting that it was reasonable to presum e that a patron exiting the bank m ight be reviewing transactions, looking f or car key s or his or her car, and theref

ore not discover even a m inim al def ect. As noted in Harris , the location of a def ect is a determ ining f

actor as to whether a def

ect is actionable. Harris , 315 Ill. App. 3d at 901, 735 N.E.2d at 764. It is certainly reasonable to f

oresee that an elderly

patron of

an ey e clinic m ight have his or her attention f ocused on the pathway f

orward to the door and steps of the clinic as opposed to the path im m ediately underf oot. It is also reasonable to f oresee that a patron of an ey e clinic m ay have had certain procedures perf orm ed on his or her ey es and, upon exiting the clinic, m ay not be looking downward at the sidewalk all of the tim e, even though the patron m ay have previously noticed the def ect and have knowledge of it. Likewise, it is also reasonable to f oresee that such a patron m ay look up while walking toward the clinic's entrance to see how m uch f urther he or she needs to go bef ore reaching the steps to the c l i n i c

. T h e f o cus is on the f

oreseeability of the injury , and it is of no
consequence whether or not a jury will consider plaintif f contributorily negligent f or looking toward the entrance to the clinic. The f actual circum stances of plaintif f 's conduct are m atters within the purview of

the jury , not the court. ¶ 13 A m

unicipality is charged with the duty of o r d i n a r y c a re with regard to its property

to th e extent that intended and perm itted users will utilize m unicipal property in a m anner

6which is reasonably f oreseeable. Plaintif

f was a pedestrian on a public sidewalk. Clearly the City knew that pedestrians would be walking on the sidewal k

. A n d , while it is true that a

m unicipality is not required to m aintain hundreds of m iles of sidewalks in good repair at all tim es (see Gillock v. City of Springfield , 268 Ill. App. 3d 455, 457-58, 644 N.E.2d 831, 833- 34 (1994)), here, the City had knowledge of the dangerous situation that had developed on the pathway to the Clinic. The City had even been alerted that at least one other person had already tripped because of t h e dangerous unevenness of the sidewalk. Additionally , a

com m ittee authorized by the City to evaluate tree rem oval actually reviewed the issue but declined the Clinic's of

f er to rem ove the tree at its own expense because o f t he historic signif icance of the tree. Clearly , other options existed, s u c h as replacing the cracked si d e w a l k o r reconf

iguring the walkway to accom m odate the tree. Theref ore, it is not a signif icant burden to im

pose a requirem ent on the City that it take action to rem edy a known danger in a reasonable tim e f ram e. The f

act that this condition occurred over several y ears and that the City had knowledge of the danger does not allow the City to bury its head in the sand and ignore the real danger posed by the uneven sidewalk. Moreover, it is not necessary f or a def endant to f

oresee the precise nature of the distraction. As Rexroad illustrates, all that is required is the def

endant's awareness that those in proxim ity to the op e n a n d obvious h a z a r d are likely to becom e distracted in som e way and f orget about the presence o f t h e hazard. Rexroad , 207 Ill. 2d at 46, 796 N.E.2d at 1047; Clifford , 353 Ill. App. 3d at 46, 817 N.E.2d at 1218. W hether the City breached its duty of reasonable care to plaintif f , under the circum stances presented here, is a question of f act f or the jury

. Clifford , 353 Ill. App. 3d at 47, 817 N.E.2d at 1218. Accordingly , the court erred in granting sum m ary judgm ent in f

avor of the City

. ¶ 14 For the reasons stated above, we reverse the judgm ent of the circuit court of Marion County and rem and the m atter f

or f urther proceedings.

7¶ 15 Reversed and remanded.

82013 IL App (5th) 130094
NO. 5-13-0094
IN THE APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT

___________________________________________________________________________________ VIRGINIA BRUNS, ) Appeal f rom the ) Circuit Court of Plaintif f -Appellant, ) Marion County

. ) v. ) No. 12-L-21 ) THE CITY OF CENTRALIA, ILLINOIS, ) a Municipal Corporation, ) Honorable ) Michael D. McHaney , Def endant-Appellee. ) Judge, presiding.

___________________________________________________________________________________ Opinion Filed : Septem ber 23, 2013

___________________________________________________________________________________ Justices : Honorable Judy L. Cates, J. Honorable Thom as M. W elch, J., and Honorable Bruce D. Stewart, J., Concur

___________________________________________________________________________________ Attorney Daniel R. Price, W ham & W ham , 212 East Broadway , P.O. Box 549, Centralia, for IL 62801 Appellant

___________________________________________________________________________________ Attorney Brian M. Funk, O'Halloran, Kosoff , Geitner & Cook, LLC, 650 Dundee Road, for Suite 475, Northbrook, IL 60062 Appellee

___________________________________________________________________________________