## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Brun s v. City of Centralia, Il linoi s , 2013 IL App (5th) 130094

Appellate Court Caption VIRG I NIA BRUN S , P l ai n t iff-A ppellant, v

. T HE C I T Y OF CE N T RAL I A , ILLI N O I S, a Mu

n ic ip a l Co r

p o ration, Def

endant- A p p e ll e e

.

District & N o. Fifth District Docke t No. 5-13-0094

Filed Rehea ringdenied September 23, 2013

October 23, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by 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

. ) The entry of summary judgm ent for defe ndant city was reve rsed in an action for the injuries plaintiff suffe re d wh en she tripped and fell on a raised section of a public sidewalk while g oing to an eye clinic, since the

rec ord showed that the roots of a near by tree cause d the sidewalk to cra ck and heave
, another person had tripped at the same location, the clinic had repor ted the condition to the city and offe red to remove the tree , the city ’s tree committee re fused the c linic’s offe r due to the historic signific ance of the tree , and even tho u gh t h e dang er was open and obvious, it was
rea sonably fore seea

ble that a patron o f the clinic might be distracted while walking to the clinic, and under the circ umstances, the question of whether the city brea ched its duty of rea sonable car e should h av e been left for the jury

.

Dec ision Under Review Appea l from the Circuit Court of Marion County , No. 12-L -21; the Hon. Michae l D. McHa

ney , Judg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Daniel R. Price, of Wham & Wham, of Centra lia, for a ppellant.

Brian M. Funk, of O’Ha lloran, Kosoff, Geitner & Cook, L L C, of Northbrook, f

or appe llee.

Panel J USTI CE CATES delivered the judgment of the c ourt, with opinion. J ustices Welch and Stewa rt conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Virg inia Br uns, soug ht damag es fr om defe ndant, the City of Centra lia (City), for persona l injuries sustained afte r tripping over a raised section of a public sidewalk. The circ uit court of Marion County g rante d the City ’s motion for summary judgme nt afte r deter mining that the City

owed no duty

to plaintiff. Plaintiff appea ls the gra nt of sum mary judgme nt in favor of

the City . We reve rse a

nd rema nd. ¶ 2 On Marc h 2 7 , 2 0 1 2 , p laintiff intended to enter the Centralia Eye Clini c (Clinic) (now doing business as Eyeca

re Manag ement, L L C) for a schedule d appointment. On that date, the wea ther wa s clea

r, and nobody else was walkingon the sidewa lk in front of the Clinic. As plaintiff approa ched the Clini c, she tripped over a raised section of sidewalk that was part of the path used to acc ess the front entra nce to the Clini c. A larg e tree stands adjac ent to the sidewalk, a

nd over time, its root sy stem cause d a conc rete section of the side walk to cr ack and heave
, cre ating an uneven pathway

. At the time of plaintiff’s fall, the cra cked sidewalk

was raised some three inches above the adjac ent concr ete slabs and grass. The Cli n i c had previously contac ted the City to repor t the defe ctive condition, and at one point, even offe red to have the tree remove d at the Clini c’s expense. In fac t, at least a year prior to plaintiff’s fall, t h e C l i nic had repor

ted that another person had tripped as a result of the raised sidewalk. De s p i t e knowledg e of the dang erous condition of the sidewalk, the City ’s tree committ ee considere d the tree to have historic significanc e and r efuse d remova l. ¶ 3 At the time o f h er fa l l, plaintiff was 80 year s old and had been a patient of the Clinic since Dec e mb e r o f 2 011. She was being treated for various eye problems, including irritation, pain i n h er ey es, and blurry and reduc ed vision. During past visits, plaintiff parke d on the street and routinely walked along the same sidewalk on her way to the entra nce of the Clini c. Eac h time, she had noticed the sidewalk defe ct and considere d it to be “an acc ident waiting to ha ppen.” At the time of her fall, plaintiff was not looking down at the sidewalk. Instead, she was looking toward the Clini c door and steps wher e she was intending to enter

. Be cause her attention was fix ed on the Clini c’s entra nce, she did not notice the cra ck in the sidewalk. She stubbed her right foot on the cra ck and fell. In trying to catc h herse lf, she sever ely injured her

shoulder and a

rm.

-2-¶ 4 T h e public works fore man for the City testified that the sidewalk wa s a d an ger t o

pedestria ns and was hazardous at the time of plaintiff’s fall. He also rec og nized that not a ll pedestria ns look down all of the time as they are walking

. He also acknow ledg ed the duty of

a city
, in g ener al
, to use rea sonable car e to keep its sidewalks in g ood repa ir, and further acknow ledg ed that if the City wer e awa re of the condition of this particula r sidewalk, it was
unacc eptable f

or the City

not to have re medied the de fec t. ¶ 5 The court deter mined that the s idewalk defec t at issue here was open and obvious as a matter of law and that the distraction ex ce p t i o n was inapplicable under the circ umstances prese nted. Specifica lly
, the court stated that “the mere exis tence of an entra nce, and/or steps leading up t o i t , wo uld provide a universal distraction exception to the open and obvious doctrine. Such an expansion of I llinois neg lige nce law must only come from the leg islature or a higher c ourt.” Ac cording ly , the cour t entere d summary

judgme nt in favor the City

. ¶ 6 Sum m ary j u d gm en t i s ap p ro p ri ate when the pleading s, aff idavits, depositions, and admissions on file, viewed in the light most favor able to the nonmoving party , reve al that there is no g enuine issue of m ater ial fac t and that the m oving party is entitled to judgme nt

as a matter of law. 735 I L CS 5/2-1005(c) (West 2012); see also Sollami v. Eaton , 201 I ll. 2d 1, 6, 772 N.E.2d 215, 218 (2002). Summary jud gm en t is a drastic means of disposing of litigation and should be allowed only when the ri gh t o f t h e m o ving party is clea r and fre e from doubt. Harris v. Old Kent Bank
, 315 I ll. App. 3d 894, 899, 735 N.E.2d 758, 762 (2000). The purpose of summary

judgme nt is not t o try

a question of fac t, but, rathe r, to de termine if one exis ts. Kleiber v. Freeport Farm & Fleet, Inc. , 406 I ll. App. 3d 249, 255, 942 N.E.2d 640, 646 (2010). In deter

mining whether g enuine issues of materia l f act exis t, w e view the fac tual rec ord in the light most favor able to the nonmoving party

. United National Insurance Co. v. Faure Brothers Corp. , 409 I ll. App. 3d 711, 716, 949 N.E.2d 1185, 1190 (2011). Moreove r, summary judgme nt should not be grante d if it is possible to draw more than one
rea sonable infere n ce from undisputed fac ts. Buchak lian v. Lake County Family Y oung Men’

s Christ ian Ass’n , 314 I ll. App. 3d 195, 199, 732 N.E.2d 596, 599 (2000). Summary judgme nt should not be g rante d unless the moving party ’s right to a judgme nt is “cle ar and fre e from doubt.” (Interna l quotation marks omitted.) Buchak lian
, 314 I ll. App. 3d at 199, 732 N.E.2d at 598-99. Our revi ew o f a trial court’s g rant of summary judgme nt is de novo

. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 I ll. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992); Morietta v. Ree

se Construction Co. , 347 I ll. App. 3d 1077, 1080, 808 N.E.2d 1046, 1049 (2004). ¶ 7 Plaintiff argu es o n ap p ea l t h at t he City owed her a duty of rea sonable car e as to the condition of i ts sidewalk. Everyone agree s that the crack in the s idewalk at issue here was open and obvious as a matter of law. Plaintiff contends, howeve r, that such a fac t is only the beg inning of

deter mining whe ther ther e existed a leg al duty

. ¶ 8 The essential elements of a ca u s e o f action based on common law neg lige nce are the exis tence of a duty owed by the defe ndant to the plaintiff, brea ch of that duty
, and an injury proxi mately cause d by that brea ch. W ard v. K mart Corp. , 136 I ll. 2d 132, 140, 554 N.E.2d 223, 226 (1990). Whether a defe ndant owes a plaintiff a duty of car e is usually a question of law to be de cided by

the cour t. W ard , 136 I ll. 2d at 140, 554 N.E.2d at 226. In makingthis deter mination, the court should consider the fore seea bility of the injury
, the likelihood of the

-3-injury
, the magnitude of the burden on the defe ndant of guarding ag ainst the injury
, and the

conseque nces of placing the burden on the defe ndant. Clif ford v. W harton Business Group, L.L.C

. , 353 I ll. App. 3d 34, 40, 817 N.E.2d 1207, 1213 (2004). ¶ 9 In g ener al, a par ty that owns, controls, or maintains proper ty has a duty to ma intain the premises in a reasonably safe condition. W a r d
, 1 3 6 I l l

. 2d at 141, 554 N.E.2d at 227. Any dang erous condition, there fore
, must be remove d or corr ecte d, or a war ning to invitees who might encounte r the dang er must be provided. W ard
, 136 I ll. 2d at 141-42, 554 N.E.2d at 227. Howeve r, a proper

ty owner is g ener ally under no obligation to guard ag ainst injury from open and obvious da

ng ers. W ard , 136 I ll. 2d at 142, 554 N.E.2d at 227. Ope n and obvious

co nditions are conditions and risks which are appar ent to and would be rec ogn i z ed b y
rea sonable people exercising ordinary perc eption, intelligenc e, and judgme nt in visiti ng the

are a. Sandoval v. City of Chicago
, 357 I ll. App. 3d 1023, 1028, 830 N.E.2d 722, 727 (2005). Property owner s are not expected to fore see an injury from an o p en an d obvious dang er ( Buche leres v. Chicago Park District , 171 I ll. 2d 435, 447-48, 665 N.E.2d 826, 832 (1996))
, beca use proper

ty owner s are entitled to the expectat i o n t h at those who enter upon their proper ty will exercise rea sonable car e for their own safe ty ( Sandoval
, 357 I ll. App. 3d at 1028, 830 N.E.2d at 727). ¶ 10 Our courts have also rec og nized a “distrac tion” exception to the open and obvious da ng er rule g rounded in fore seea bility

. See W

ard v. K mart Corp. , 136 I ll. 2d 132, 554 N.E.2d 223 (1990). The exception applies when there is rea son to expect that a plaintiff’s attention may b e d i stracte d from the open and obvious condition beca use circumstance s require d him or her to foc us on some other c ondition to t he extent that he or she w ill forg et the hazard that has alre ady been discovere d. Clif ford
, 353 I ll. App. 3d at 42-43, 817 N.E.2d at 1215. Under such circ umstances, proper ty owner s owe a duty to exercise rea sonable car e to protec t invitees from harm in spite of the open and obvious nature of the dang er. Rex road v. City of Springfield , 207 I ll. 2d 33, 796 N.E.2d 1040 (2003). ¶ 11 In this instance, the trial court conclude d that in order to apply the distraction exception to impose a duty upon the City
, the City had to have cre ated, co n t ri b u t ed t o , or was responsible in some way for the distraction which diverted plaintiff’s attention from the open and obvious c ondition, ther eby charg ing the City with the rea sonable for esee ability that an injury might occur

. See Sandoval
, 357 I ll. App. 3d at 1030, 830 N.E.2d at 729. As plaintiff

corr ectly contends, howeve r, the ke y question is the fore seea

bility of the likelihood that an i n d i v idual’s attention may be distracted from the open and obvious condition, not the

cre ation of the distraction. For instance, in Rex road
, the court reve rsed summary judgme nt in favor of the C ity of S pring field when a high s chool m anag er of a fo o tb al l t ea m stepped into an unbarricade d hole. The student testified that he was distracted from the hole beca use of his focus on car

rying a football helmet to the player who neede d it. The helmet was related to the team, but clea

rly the City of Springf

ield di d n o t cr ea t e, contribute to, or cause the distraction which diverted the student’s attention. Rex road
, 207 I ll. 2d 33, 796 N.E.2d 1040;

see also Clif

ford
, 353 I ll. App. 3d at 4 5, 817 N.E.2d at 1216-17 (proof not require d that possessor of land cre ated or had control over distraction, nor is proof require d that hazardous condition was cr eate d by

possessor of land)

. ¶ 12 We believe the situation here is closer to that found in Harris v. Old Kent Bank
, 315 I ll.

-4-App. 3d 894, 735 N.E.2d 758 (2000). In Harris , an elderly patron of the bank sued for

injuries sustained when she tripped and fell on a slightly raised sidewalk panel betwee n the bank and the parking lot. Whil e the focus of the court’s opinion was on the de minimis rule reg arding defe ctive sidewalks, the underly ing rea soning is just as applicable here

. Summary judgme nt in favor of t h e b an k wa s reve rsed after noting that it was reasona ble t o presume that a patron exit ing the bank might be revie wing transac tions, looking for car key s or his or her c ar, a nd there fore not discover e ven a minim al defect. As noted in Harris , the location of a defe ct is a deter

mining fac tor as to whether a defe ct is actionable

. Harris , 315 I ll. App. 3d at 901, 735 N.E.2d at 764. It is cer tainly rea sonable to fore see that an elder ly patron of an eye clinic might have his or her attention focuse d on the pathway forwa rd to t h e door and steps of the clinic as opposed to the path immediately underf oot. It is als o reasonable to fore see that a patr on of an e ye clinic may have ha d cer

tain proce dures perfor

med on his or her eyes and, upon exit ing the clinic, may not be looking downwar d at the sidewalk all of the time, even though the patron may have previously noticed the defe ct and have knowledg e of it. L ikewise, it is also rea sonable to fore see that such a patron may look up while walking toward the clinic’s entr ance to se e how much far ther he or she ne eds to g o befor e re aching the steps to the clinic. The focus is on the fore seea bility of t h e i n

j u ry , and it is of no conseque nce whether or not a jury will consider plaintiff contributorily neg lige nt for looking toward the entra

nce to the clinic. The fac tual circ umstances of plaintiff’s conduct are matters within the purview of the jury , not the court. ¶ 13 A municipality is charg ed with the duty of ordinary car e with reg ard to its proper ty to the extent that intended and per mitted users will util ize municipal property in a manner

which is reasona bly fore seea

ble. P laintiff was a pedestrian on a public sidewa lk. Clearly the City knew that pedestria

ns would be walking on the si d ew al k

. An d
, while it is true that a municipality is not require d to maintain hundreds of miles of sidewalks in g ood repa ir at all times (see Gillock v. City of Springfield
, 268 I ll. App. 3d 455, 457-58, 644 N.E.2d 831, 833- 34 (1994)) , here , the City had knowledg e of the dang erous situation that had develope d on the pathway to the Clini c. The City had even been aler ted that at least one other person had alre ady tripped beca

use of the dang erous unevenne s s o f t h e sidewalk. Additionally
, a committee authorized by the City to evaluate tree removal actua lly revie wed the issue but d eclined the Clini c’s offe r to remove the tree at its own expense beca use of the hist o ri c signific ance of the tree

. Clearly
, other options exis ted, such as repla cing the cra cked side w alk

or rec onfiguring the walkwa y t o acc ommodate the tree

. There fore
, it is not a signific ant burden to impose a require ment on the City that it take action to reme dy a known dang er in

a rea sonable time fra

me. The fac t that this condition occur red over sever al year s and that the City had knowledge of t he dange r does not allow t he C i t y t o b u ry its head in the s and and ignor e the rea l dang er posed by the uneven sidewalk. Moreov er , i t is not nece ssary for a defe ndant to fore see the prec ise nature of t he dis trac tion. As Rex road illust rate s, all that is require d is the defe ndant’s awa rene ss that those in proxi mity to the open and obvious hazard

are likely to become distracted in some way and forg et about t h e p rese nce of the hazard. Rex road
, 207 I ll. 2d at 46, 796 N.E.2d at 1047; Clif ford
, 353 I ll. App. 3d at 46, 817 N.E.2d at 121 8

. Whether the City brea ched its duty of rea sonable car e to plaintiff, under the circ umstances prese nted here
, is a question of fac t f or the jury

. Clif

ford
, 353 I ll. App. 3d at

-5-47, 817 N.E.2d at 1218. Acc ording ly
, the court err ed in g ranting summary judgme nt in favor

of the City

. ¶ 14 For the rea sons stated ab o v e, we reve rse the judgme nt of the circ uit court of Mar ion County and re mand the matter

for f urther pr ocee dings.

¶ 15 Reverse d and re manded.

-6-