No. 2-09-0347 Filed: 5-27-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ DAVID W. WILFONG, ) Appeal from the Circuit Court ) of Ke nd al l C ou nt y. Plaintiff -Appella nt, )

) v. ) No. 06--L--15 ) L.J. DODD CONSTRUCTION a nd ) G. PORTER AND COMPANY, ) ) Defendants-Appellees ) ) (Kluber, Skahan and Associates, I nc., and ) Honorab le Kocurek Concrete Contractors, I nc., ) Thomas E. Mueller, Defendants). ) Judge , Pres idin g.

_____________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: Plaintiff, David W. Wilfong, was injured when he fell while walking ac ross ruts at a construc tio n site. H e appeals from the trial court's g rant of summary judg

ment in favor of defenda nts, L.J. Dodd

Construction (Dodd) and G. Porter & Compan

y (Porter) . Plaintiff

argue s that: (1) the trial court erred in ruling that the ruts were op en and ob vious; (2)the trial court er red in determining that the "distraction exception" did not apply; (3) the trial c ourt erred in ruling that the distractionwas not re asonably foreseeable by

defendants; (4) even if the ruts were open and obvious, defenda nts owed him a

duty to maintai

n a safe j obsite pursuant to th eir cont racts wi ththe landowner; and (5) the t r ial co urt di d not give pr oper we ight t o an ex pert's state ment a ttach ed to p laint iff's motion to reconsider. We affirm.No. 2--09--0347

-2- I. BACKGROUND In November 2004, plaintiff was a project manager f or Jones & Brown Company and was assigned to the Churchill Elementary School projec t in Oswego. Jones & Brown was a steel fabricator hired by the project owner, Oswego Unit School District 308 (OSD 308). OSD 308 hired defendant Dodd as th e gene

ral cont ractor and defe ndant Port

er as a masonry subcontractor. Kluber, Skahan& Associates, Inc . (Kluber, Skahan), was the architectura l firm for the project, and Kocurek Concrete Contractors, Inc . (Kocurek Concrete), was hired by OSD 308 to pour concrete. The following facts come from excerpts of depositions contained in the record. At the time inquestion, the constructionsite consisted primarily of the school building under construction and Dodd's job trailer, which was in a paved parking lot about 75 y ards west of

the school. Much of

the site was very muddy

and filled with ruts. About 20 to 30 feet or 60 to 70 feet from the job trailer was
a gravel path that led from the parking lot to the east entrance o f the school. Michael Barr, OSD 308's construction super

visor, te stified th at Dodd ha d the path installed after h e reque sted a " smooth walking path" to provide "clear access to the building." The path satisfied his concerns rega rding ground conditions, and

he did not t

hink that a

nyt hing els e neede d to be don e to address the ground condition s. Wh en as ke d i f t he re wa s a de si gn at ed wa lk wa y, Barr replied in the nega tive and said that there were "severa

l points of access to the building." On several occ asions he had chosen to walk
acrossthe ruts rather than take the grave l path. The n umber and size of rut s sho wn in p laint iff's photographs did not look different fro m ot her construction sites at that time of year. Barr further testified that Jones & Brown and Porter were hired dire ctly by OSD 308. Plaintiff testifie d in

his deposi

tion as fo llows. On November 18, 2004, he was participating in a progress meeting in the job trailer . Plaintiff had bee n to the job site about two to three times aNo. 2--09--0347

-3-

week for the previous two months to inspect progres s. About 20 minutes into the meeting, Neal Dodd (Neal) was concerned whe ther Jones & Brown

had enough "sure connec tors" delivered to the site. Sure c onnec tors a re weld ed thr ough decking to allow poured concrete to maintain its structural in te gr it y. Plain

tiff called h is office , and the p erson in c harge of shippin

g, Mike M illigan, told plaintiff that they had bee

n delivered and told him the quantity. Ne al said that the quantity was insuffic ient. Plaintiff asked Milligan to check again, and Milliga n sai d that he would. Plaintiff decided to leave the trail er to do a

phy sical co

unt. The discussion in the trailer had been heated, and plaintiff was upset with Milligan

for not verify

ing the number of connectors before plaintiff left the trailer. Plaintiff did not know where the connectors were but "[c]ommon sense *** told [him] that the sure con

necter s [ sic ] were ins i de the b uilding a nd were protect ed" fr om the ele

ments bec ause they came in cardboard b oxes. "That 's the first t hing [he] thought abou t." Plainti ff left the trailer at about 9:30 or 10 a.m., and walked over the pa rking lot, down a grassy area, and down a "drive" that w as bare ground with rough terrain but was an access way for vehicles to get to the building. Plaintiff testified that he had to walk in a rut that a truck had made inthe drive and that "[f]rom that point on it was atyour discretion which way y ou went. There was
no designated path to the job." Plaintiff explained that the rutin which he was walking in the drive did not lead to the building, so he had to keep stepping in and out of different ruts to make his way to th e b ui ld in g. He wa s w al ki ng in a n or ma l m an ne r a nd wa s n ot in a h ur ry. The ruts plaintiff

was walk

ing in were consistent with the tires of the lulls that bricklay ers
use to carr

y br icks. The width

and shap e of the t

ire trac ks, along with plaintiff's experience, allowed him to identif

y th e source

of the tra

cks as a l u ll. Porter used lulls on this site. The ruts were gener ally about 8 to 10 inches deep. He could not walk on the "tops" of the ruts, meaning groundNo. 2--09--0347

-4-

level, because they

were unstable; it was like walking on a peak. The ruts themselves went down fromground level. The ruts were a "little hard" be cause the sun had not come out y etto "soften stuff up." Low areas of the

site were damp and muddy , but the inside of the ruts was "firm." He believed that he must have been sidestepping from one rut to the next, because he could not cross over and puttwo feet

inthe same rut. When plaintiff was stepping from one rut into the bottom of another rut, the "side of the rut *** gave way " and he lost his balance and turned his right ankle . Just before he fell, he was looking at the ruts and try ing to determine his next step. A few sec onds before he fe ll, Millig an calle d plaintif f on his cell phone and

told him that the quantity of connectors Neal had claimed should be on the site was c orrect. Plaintiff w as on the phone when he fell. Plaintiff was about 25 to 30 y ards away from the building and 35 to 40 yards away from the t

railer. He was w earing

high-to p boots with

steel toe s. For two or three weeks before the ac cident, plaintiff had complained about the sit e's condition because trucks c ould not g et close enough to the building

to make pr

oper del iveries. Plaintiff

said that the site needed to be scraped because the trucks "needed a level laid out surfac e to bring our material onto the worksite." Deliveries had to be made about 100 or 150 yards from the bu ildi ng, whichwas not the

usual ca se for c onstruct

ion sites. P l aintiff b eli eved that leveling ruts was the responsi bility of the general contractor, construc tion manager, or whoever wa s i n c ha rg e o f s af

et y. Plaintiff had work

ed in construction for over 20 y ears and had 40 hours of a safety training
course. The instruction included keeping an ey e on the site's ground to watch wher e you are walki ng. Plaintiff

was familiar with ruts on jobsites and with muddy and rainy conditions, and he
was familiar

with how to

avoid rut s while w alking on jobsites. However, this jobsite wasNo. 2--09--0347

-5-

substandard

regarding the number, leng th, and depth o f the ruts . As a result of his fall, plaintiff fractured his ankle. Melvin Greatho use testified that he was the general foreman for DTI, which Jones & Brow n had hired as a steel erector. At one of the first prog ress meetings he was involved in, he told Neal that as the general contractor, Dodd wa s obligated to provide access with a good road and a level dry
area to p ut the stee l down. Greathouse believed that the site's condition was eve n worse than depicted in plaintif

f's pho tos, and he

repeat edly complain ed about c onditions. His worke rs als o complained

about the muddy conditions when walking to the building site, bec ause "[b ]y the time you would get there *** y

ou would have mud *** halfway up y our thig

hs. " In his 40 y

ears as an ironworker, G reat house ha d been to a

bout 4,500

jobsites. H e had be en to a fe w sites wit

h ruts similar to the Churchill School project, but those had been shut down to fix the ruts, whereas Dodd made little to no attempt to fix these ruts. There was one day Gr eathouse called off his workers due to site conditions. Ronald Tucek ran Kocurek

Concrete. He testified that they were scheduled

to pour concrete
on November 17 but had to postpone until the 22nd due to rain. Tucek described the conditions as those of a "normal jobsite," though he also said that it was "pretty muddy" and he was "surprised that they were working in

this kind of

mud and tha

t the lulls ma

de it th r ough." Ruts such a s those depicted in plaintiff's photos were common on construction sites. The only way to avoid ruts was to putdown stone, but it was highly doubtful that any construction contractor would do that because of the expense and the imp ractica lity . Tucek e

xplained th at the contractor would the n have to
remove all of

the stone to plant g

rass. On some projects, his company had been hired to grade out ruts similar to

the ruts on this

site. How ever, he

had neve r seen g rading done on a

daily or week lyNo. 2--09--0347

-6-

basis. Usual ly, it wo uld b e done before a freez e, again in sp ring after the free ze/thaw cycles, a nd towar d the e nd of the job. It was a "ne ver-ending battle for ruts" a nd there was no way

for a contractor

to a void the m, because any thing with rubber tires, especially lulls, would rip up the ground from Nove

mber until

April. Michael Kjellesvik, the plumber foreman of C.R. Le onard Plum

b ing & H eating, testified that he and his crew did not have any problems accessing

the building due to ground conditions. At one poin t, "they

made us [a] stone side

walk." The sidewalk was in stalled be cause of the mud out sid e and mud being tracked into the building. I t was shown in one of plaintiff's pictures as a muddy gravelpath. It went from the parking lot to the building. When Kjellesvik parked near the trailer, he would take the gravel path to the building. The number and size of the ru ts sh own in plain tiff's photographs were ty

pical for a construction site at that time of y ear. John Kennelly, Porter' s superintendent, testified that the quantity a nd size of the ruts shown inplaintiff's photographs looked ty pical for that stage of the work at that time of y ear. Edward Mucha, Porter's foreman, similarly testified that the number and size o f the ruts depicted in the photographs were typic al for that time of ye ar, and he described the site as "in fairly decent shape." Mucha also testi fied tha

t there w as a "st

one road " that we

nt f rom the pa

rkin g lot "right to the building," which was used to make deliveries to the building. Steve Freeman of S&K Excavating testified that S& K was on-site at the beginning of the project and at the end to level the ground. L ooking at photographs of the site, Freeman state d that it would probably " not do much good" to scrape the site in that co ndit ion beca use it was

pretty
mu dd y; his machine

probably would not b e able to

get ar ound in the

mud and wo

uld be mak

ing its
ownruts. The ground would first haveto "f reez e up a little

bit." I f he leve led out suc h a muddy

siteNo. 2--09--0347

-7-

inthe morning and machinery continue d to be use d on the sit e, the site probably would return to its previous condition within a few hours. Freeman described pictures of the site as depicting a "ty

pical constructionsi te" in terms of the ground condition and number of ruts. He had see n sites where plywood was laid down for workers to have access to the site. Pla intiff filed his initial complaint on March 8, 2006. He filed an amended complaint o n June 19, 2006. Count I alleged neg ligence against Dodd. Plaintiff allege d that Dod

d had a du

ty to exercise reasonable care in the opera tion of the construction

site, "includingthe provision of a safe, suitable and prop er gro

und condi tion" for him and o ther wor kers. Do dd alleg edly

breached this dut

y by violating various sect ions of the Occupational Safety and Health Act (OSHA); failing to make
reasona ble in spection of the premises and work; improperly managing and maintaining the pre mises ; fai ling to provide plaintiff with a safe place to work; failing to war n plaintiff of the dangerous condition s; failing to provide adequa te safe guard s to preve

nt injury ; failing

to superv ise the work; and failing to maintain the ground of the construction site in a saf e manner. CountII allege d neglig ence against Porte r. Plaintif f alleg ed th at Porter used heavy eq uipment inthe mixing and pouring of concrete and had the authority

to order chang es in the work that would have prevented the "improperly graded area" caused by its mac h inery. C ount I I all eged the same breaches of duty

alleged in count I, w

ith the exception of the failure to supervise. CountIII alleged ne gligence ag ainst Kluber , Skaha n, and co unt IV allege d neglig ence against Kocurek Concrete. Plaintiff voluntarily dismissed these defendants on August 29, 2007. Dodd filed

a motion fo

r summary

judgmen t on Augu st

12, 2008, and Porter filed a motion for summary judgme

nt on September 25, 2008. The trial court granted the motions on January 9, 200 9, findi ng as fo llow s. Def endan ts gene rally had a duty to p laint iff to prote ct aga inst the har mNo. 2--09--0347

-8-

caused by the unrea sonably dang erous condition created by ruts, mud, and

water on the construction site. However, an

exception to such a duty exists when the dang er is open and obvious. In this case, the conditions were open and obvious, and plaintiff had worked in construction for over 20 y ears and
was familiar

with the si

te's conditions. The "distraction exception" to the open-and-obvious doctrine did not apply because defenda nts did not cause the distraction of plaintiff talking on his cell phone while walking over the ruts and, further, bec ause the distraction was not reasonably foreseeable by defenda nts. The "deliberate encounter e xception" to the open-and-obvious doctrine did notapply because there was an alternative gr avel path, which plaintiff

admitted existed, and plaintiff chose not to use the path but to

instead ta

ckle the ruts. Plaintiff filed a motionto reconsider on February 3, 2009. The trial court denied the motion on March 13, 2009. Plaintiff timely appe aled. II. AN ALYS IS Summary judgment is appropriate only where the pleadings, depositions, admi ssions, and affida vits on file, when

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

material fact and that the moving party is entitled to judgment as a matter of law. Murray v. Chica

go Youth Center , 224 Ill. 2d 213, 228 (2007). The purpose of summary judgment is to determine whether a question of fact exists, not to make factual findings, a nd summary judgment should be granted only where the movant's right to it is clear. Forsythe v. Clark USA, Inc. , 224 Ill. 2d 274, 280 (2007). We review de novo a grant of summary judgment. WeatherTite, I nc. v. Uni versity of St. Fra ncis , 233 Ill. 2d 385, 389 (2009). Here, plaintiff alleged neglige nce against both defendants. The elements of a

cause of action for negligenc e are: (1) a duty owe d to the plaintiff by the defe ndant; (2) a breach

of that duty; andNo. 2--09--0347

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(3) an injury proximately caused by the

breach. Matthew s v. Aga nad , 394 Ill. App. 3d 591, 598 (2009). Plaintiff's arguments on appeal rela te to the element of duty, a nd we discuss this area of

law insome deta

il before returnin g to plai ntiff' s specif

ic arg uments. Whe

ther a du ty e xists is a question of law to be determined

by the court. Bonavia v. Rockford Flotilla 6-1, I nc. , 348 I ll. App. 3d 286, 291 (2004). T

he four f actors c ourts ty

pically consider indetermin

ing whe ther a du ty e xists are: (1) the re as on ab le fo re se ea bi li ty o f i nj ur y; ( 2) th e l ik el ih oo d o f i nj ur y; (3) the magnitude of the burden of guarding against injury ; and (4) the consequences of placing that burden on the defendant. Grant v. South Roxana Dad's Club , 381 Ill. App. 3d 665, 669 (2008). We consider

the first prong o f the duty

test, foreseeability , by

reference to section 343 of the Restatement

(Second) of Torts. LaFever v. Kemlite Co. , 185 Ill. 2d 380, 389 (1998). Section 343 states in p ertinen

t part: "A possessor of land

is subject to liability for phy sical 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 discove r the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will no t di scover or realize the dang er, or will fail to protect themselves against it, and (c) fails to exercise

reasonable care to protect them against the danger." Restatement (Second) of Torts §343 (1965). Comment d

to section343 provid

es that " [a]n invitee

is entitle d to expect

that the p ossessor

will take
reasona ble care to ascertain" the pre mises' cond iti on and, " having discover ed it, either to mak

e itNo. 2--09--0347

-10-

reasona bly safe by r

epair or give warning of the actual condition

and ri sk involved therein." Restatem ent (Sec ond) of T orts §343, Comment d , at 217 (1965). However, an open and obvious condition is a recognized exception to the duty of care s et forth i n section 343 of the Restatement. LaFever , 185 Ill. 2d at 390. Section 343A(1) of the Restatem ent addr

esses this subject, stating

in relev ant part : "A possessor of land

is not liable to his invitees for physical ha rm caused to them by any activity or condition on the land whose da nger is known or obvious to them, unless the possessor should ant

icipate t he harm d espitesuch knowledge or

obviousness." Restatement (Second) of Torts §343A(1) (1965). See also Ward v. K mart Corp. , 136 Ill. 2d 132, 150-51 (1990) (adopting se ction 343A). The term "obvious " means tha

t a reasona ble pers on would r

ecogn ize both the

condition and the r isk involved. Green v. Jewel Food Stores, Inc. , 343 Ill. App. 3d 830, 832 (2003). The determination of w hether
a condition is open and obvious is an objective test rather than a subjective test. Buchaklian v. Lake Coun ty Family You ng Men's Chri stian Ass'n , 314 Ill. App. 3d 195, 203 (2000). Whether a condition is open and obvious play s a larg e role in whether a duty exists because it rela tes to t he issues of foreseeabilty and likelihood of injury. Belluomini v. Stratford Green Condominium Ass'n , 346 Ill. App. 3d 687, 691-92 (2004). T hat is, it is not rea sonably

forese eable that someone will be injured by a n openand obvio

us conditi on beca

use it is assumed

that peop le will apprec iate the risks of such a condition and exerc ise care for their own safety
. Belluomini , 346 I ll. App. 3d at 692. Similarly, the likelihood of injury from open

and obvious conditions is considered slight because the law assumes that individ uals encountering such conditions will appreciate and avoid the risks. Belluomini , 346 Ill. App. 3d at 692.No. 2--09--0347

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Plaintiff first ar gues tha t whether a conditi on is open and obvious is a question of fact. As stated, whether a duty

exists is a question of law, and this court has held that whether a conditi on is openand obvious is also a question of law where there is no dispute about the physical nature

of the condition. Belluomini , 346 Ill. App. 3d at 692-93; see also Bucheleres v. Chicago Park District , 171 Ill. 2d 435, 455- 56 (1996)

(La ke Michig an prese

nts an ope

n and obvi ous risk toindividuals diving fromconcre

te seawa lls into the

lake); Deibert

v. Bauer Brothers Construction Co. , 141 Ill. 2d 430, 438 (1990) (tire rut outside of portable bathroom was an obvious condition). However, where there is a dispute about the condition's phy sical nature, such as its visibility, the question o f whe ther a condition is open and obvious is factual. Belluomini , 346 Ill. App. 3d at 693; see also Simmons v. American Drug Stores, Inc
. , 329 Ill. App. 3d 38, 44 (2002) (whether "cartnapper" bar

rier outside of drug store pr

esented an open a nd obvious

dange r was a f actual q uestion) ; Buchaklian , 314 Ill. App. 3d at 204 (whether defect in mat in locker room was ope n and obvious was a question of fact). Plaintiff further argues that the ruts wer e not open and ob vious. Pl aintiff argues that the evidence clearly show s thatthe site was covered in ruts, mud, and standing water. Plaintiff argues that many of the ruts we

re not visible and

were covered with water. Plaintiff's argument is without merit. While

plain tiff's photographs show that some of the site, including some ruts, was cove red with water, p laintiff

's testim ony clearly shows tha

t he was a

ware tha t he was w alking over ruts , stepping from one to another. He characterized the g round at the bottom of the ruts on which he was placing his feet as "firm." He also testified that the ruts he was stepping into did not contain water: "It was just di

rt and mud ." Plaint

iff explai ned that " in the low a

reas [of t he site] it w as d amp a nd muddy. When you're in a rut it was firm."No. 2--09--0347

-12-

Plaintiff relatedly ar

gues that the risk that the pa

rticular rut he fe ll in would c ollapse c ould nothave been known by him or a ny other re asonable person. Plaintiff argue s that some

of the ru ts on the site were hardened and able to hold workers' weight, and he notes that Barr testified that he had walked a cross the ruts on se veral oc casions. As stated, whether something

is obvious r

elates to whether a reasonable person would recog nize both the condition and the r isk involved ( Green , 343 Ill. App. 3d at 832), and with this argument plaint iff chal lenges the risk aspect. However, the question is not whet

her one p articula

r rut woul d collaps e, but ra th er whether a reasonable person would anticipate the danger of crossing over the ruts. Here, plaintiff testified that the rutswere 8 to 10 inches deep, the tops of the ruts were unstable, he wa s look ing a t the r uts todete

rmine his next step, and he wa s familia

r with how

to avoid ruts on a jobsite. A reasonable person in his position
wou ld therefor e realize that walking across the ruts on the site would prese nt the danger of a rut collapsing or of tripping or otherwise falling. Accor dingly, we

agree with thetrial cou

rt that the ruts were open and obvious as a matter of law. Eve n if a condition is open and obvious, the landowner may still be liable if he shou l d anticipa te the ha rm despite

the condition's obviousness. Restatement (Second) of Torts §343A(1) (1965); Belluomini , 346 Ill. App. 3d at 691. Two such exceptions to the open-and-obvious doctrine
are the "distraction exception" and the"deliberate enco unter excep tion." Bonavia , 348 Ill. App. 3d at 292. The former excep tion refe rs to a situation where the landowner "has re ason 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 dis covere d, or fai l to protec t himself a

gainst i t." Resta tement (Se cond) of

Torts §343A(1), Comment f

, at 220 (1965); see Ward , 136 Ill. 2d at 153-54 (it was r easonab ly f

oresee able that customers would become distracted while exiting store with large purchases and

c ollide withNo. 2--09--0347

-13-

post). The latter exception arises when the landowner " has reason to expect that the invitee wil l proceed to encounter the known or obvious danger because to a r easonable man

in his position the adva ntages of doing so would outweigh the apparent risk." Restatement (Second) of Tort s §343A(1), Comment f

, at 220 (1965); see LaFever , 185 Ill. 2d at 392 (it wa s reasonably

forese eable that the pl ainti ff wou ld wal k on sl ipper y fiberglas s mate rial w hile p erform ing h is employment obligations). Plaintiff challen ges th e trial cou rt's fin

ding tha t the distr action exception do es not app ly because he was distracted by

his own actionin electing to talk on his cell phone while try ing to cross the ruts. Plaintiff argues that the distraction exception

applies b ecause

it is reas onably

forese eable that a worker focusing on his duties, such as speaking on the phone to verify

the location of a de li ve ry, could becom e dist racted and no t real ize t hat th e rut h e was s teppi ng on was not strong enough to support

him. Plaintiff

further argue s, in a some

what con tradictory manner, that "the

re is absolute ly

no evidence that the use of the cellular telephone distra cted him," because his testimony shows that he was looking a t the ground and contemplating his next step while he talked on the phone. Plaintiff maintain s that he never te stified th at he wa s distracted; "[t]ha t was Def endants' mischaracterization." Dodd argues that by admitting he w as not dist racted, plaintiff has thereby conceded that the d istracti on excepti on to th e o pe n- an d- ob vi ou s d oc tr in e d oe s n ot ap pl y. We agree. Cf. Reis v. Ae

tna Casua lty & Surety Co. of I llinois , 69 I ll . App. 3d 7 77, 785 (1978) (insurance company had duty

to defend based on concession in its brief). Inany even t, pla intif f'sarg umen t is wi thout merit. I n ge nera l, "[i ]norder for the distraction to be fore seeable

to the def endant so that the defendant can take reasona ble steps to prevent injuries to invitees, the distra

ction shou

ld not be so lely

within the plaint iff's own creati on." Whittleman v.No. 2--09--0347

-14-

Olin Corp. , 358 Ill. App. 3d 813, 817-18 (2005) ( distract ion except

ion did not apply for injuries the plaintiff sust ained from h igh-vo ltage lines, because the plaintiff alleged only that he was distracted by his work and did not allege that the defendant did any thi ng to cause the distraction or that the layout of the site was distracting); see also Sando val v. City of C hicago , 357 Ill. App. 3d 1023, 1030- 31 (2005) ( distract

ion except

io n inapplic able where a plaintiff is distracted by his or her own independent

acts for which the defenda nt has no di

rect re sponsibilit

y) . In th is case, to any extent that talking on the ce ll phone w as a distraction to crossing the ruts, plaintiff created that distraction by answering

the phone and continuing to walk across t he site while talking. Cases relied on by plaintiff are distinguishable because there the defendant

had created or contributed to the distraction. See Rexroad v. City of Springfie ld , 2 07 Ill . 2d 33, 46 (2003) (th e plaintif f student fell in a hole because he was distra cted by ca rrying a football helmet the coach of the defendant sc hool had ordered him to bring

); Deibert , 141 Ill. 2d

at 439 (the "[ d]efendant also created the hazard which caused the distra ction") ; Ward , 136 Ill. 2d at 153-54 (t he defe ndant sold

the plaintiff a large mirror that obscured his view of a post outside the store). Plaintiff further relies on Clifford v. Wharton

Busines s Group, L .L.C. , 353 I ll. App. 3d 34, 45 (200 4 ), where the court held that section 343A does not require proof that the possessor of the land crea ted o r con

troll ed th e dist

ract ion. W e agree

th at there is no single bright-line test for fo re se ea bi li ty. However, the Clifford court al so stated

that "the distract ion except

io n ge nerally involves a

situation where the injured party was distracted from the open and obvious condition because circumstances required him to focus on some other condition or hazard." Clifford , 353 I ll. App. 3d at 43. The cour

t held that the defendant general c ontractor should have reasonably foreseen that the plaintiff carpenter, whose work on the p roject r equired him to look upw ard, wou

ld have hi sNo. 2--09--0347

-15-

attention distracted and would fall into a nearby uncover ed holein the floor. Clifford , 353 Ill. App. 3d at 47. In the instant case, by contrast, circumstances did not require plaintiff to walk acr oss the ruts and talk on the phone at the same time. Thus, the trial court did not err in ruling that the distraction exception was inapplicable. Plaintiff does not argue that the deliberate-e ncounter exception to the open-and-obvious doctrine applies, thereby

forfeiting the issue for rev ie w. See 210 Ill. 2d R. 341(h)(7) (points not argued in the appellant's brief are forfeited). Inthe en d, th e open -and-o bvio us doc trine , alon g with its exception s, is simply a means t

o assist in analy zing the f oresee ability

and the likelihood

of injury. To any

extent that those factors
are present

here, w e conclu

de that th e remain

ing fac tors in determining

whether a duty exists,
na me ly, the magnitude of the burden of gua rding against the injury

and the consequences of

placing that burden on defendants, weigh a gainst impo sing a d uty under the fac ts of t his ca se. Al thou gh individua ls testifie d that the

y ha d seen sim

ilar ruts grade d, the only

depositions from pe ople who had persona lly been involved in grading ruts showed the impracticality of doing

so here. Tucek testified that grading was usually done just before a freeze, again in the spring , and toward the end of a job and that he had never seen gra ding done on a daily

or weekly ba sis. He testified that it was a "neverending battle for ruts" b ecause any thing wit h rubber tires, es pecially lulls, woul d rip up the ground fromNovembe

r until Apr

il. Accor ding to T ucek, the only way to avoid rut s was to put down stone, butno contra

ctor wou ld likely do that be cause it

was expen sive and t

he stone would la

ter h ave to be removed. Freeman testified that the site in the condition shown probably could not be g raded, because his machine would no t be able to get ar ound in the

mud and it

would be making it s own ruts.No. 2--09--0347

-16-

He testified that if he had leve led it in that co ndition wit

h heavy machine ry still pres ent, it pro

bably would return to its previous condition within a few hours. Further, as plainti ff ackn

owledg es in his brief, the evidence showed that Dodd had a gravel pathway installed. At oral argument, plainti ff arg ued that t he pathw ay

went just f

rom a por table toiletto th e buil ding, and no t from the pa rking l ot to the bu ildi ng. However, we find no support for this assertion in the record. Indeed, Ba rr, Kjellesvik, and Mucha all testified that the path went from the parking

lot to the bu

ilding. Pl aintiff argues that there were several points of access to the buil ding, and ther

e was " no eviden

ce that workers were di rected or required to use the gr avel pathway." Plaintiff

also arg ues that d efenda nts could have use d ply

wood boar

ds to cove

r the ruts
. However, considering the open-and-obvious nature of the ruts, the limited effectivene ss of grading
a site at the time of y

ear at is sue, the c ost

of putting down gravel on the entire site, and the existence of a gravel path leading f

rom the parking lot to at least one building entrance , we conclude that defenda nts did not hav e a duty

to try to grad e the site or crea te additional pathw ay s with plywood boards. Plaintiff

next arg ues that e ven if the ruts wer e open a nd obvious , defend

ants owe d him

a duty to maintain

a safe jobsite pursuant to their contracts with OSD 308. Plaintiff notes tha t under th eir respective contracts, defe ndants are both listed as contractors. Plai ntiff relie s on i denti cal la nguage inthe contr

acts stat ing that : (1) "If the Contr act Doc uments g ive spec ific in s tructions concerning constructionmeans, methods, techniques, sequences, and procedu res, the Contract or shall e valuate the jobsite safety there of and, except as stated below, shall be fully and solely responsible for t he jobsitesafety of suc

h means, methods, techniques, sequences, or procedur es"; (2) "The Contractor shallbe responsible fo r initiatin g, maint aining a nd superv ising al l safety

precau tions and progra

msNo. 2--09--0347

-17-

inconnec tion with

the performance of the Contract" ; and (3) "The Con tractor shall take reasona ble precautions for safety

of, and shall

provide r easonab le protect

ion to pre vent dama

ge, inju ry or loss to employees on the Work [ sic ] and other persons who may be affected thereby ." Dodd argues that plaintiff fo rfe ited this a rgumen t by failing to raise i t in the tri al court
. However, plaintiff mentioned the contractual provisions in hi s response to Porter's motion for summary judgment, in argument during the hearing on the summary judgment motions, and

again in his motion to reconsider. Accordingly , he has not forfeited the argument on appe al. Defend ants further argue that the contra cts did not create a

duty toward plaintiff bec ause he
was not a third-party be

neficiary of the contracts. A

str ong presumption exists that contracting parties in te nd th at th e c on tr ac t' s p ro vi si on s a pp ly t o o nl y t hem and no t th ird parties. Martis v. Grinnell Mutual Reinsurance Co. , 388 Ill. App. 3d 1017, 1020 (200 9). An ind ividual who is not a party to a contract may

enforce the contract only where the contracting parties intentionally entered into the contract for the individual's direct benef it. Martis , 388 Ill. App. 3d at 1020. Whether
someone is a third- pa rt y b eneficiary depends on the contracting parties' intent, as shown by the contr act's language. Martis , 388 Ill. App. 3d at 1020. Even if the contracting par ties know, expect,
or intend that

others wi ll benef

it from the ir agr

eement, that alon e is not sufficient to overcome the presumption that the contract was intended only for the parties' direct benefit. Martis , 388 Ill. App. 3d at 1020. Rather, the contract's langua ge must show that the contract was made for the direct benefit of the third person, and not just for the incidental benefit of that person. Martis , 388 Ill. App. 3d at 1020. "Such an intention must be shown by a n express provision in the contract identifying the third-party bene ficiary by name or by de scri ption of a class to which the third party belongs." Martis , 388 Ill. App. 3d at 1020.No. 2--09--0347

-18-

Dodd cites Alaniz v. Schal Associates , 175 Ill. App. 3d 310, 3 12-13 (1988). Ther e, the plaintiff, a sub-sub contractor's e mploy ee, brou ght suit against the subcontractor and the g eneral contractor

for a work-related injury, alleging that he was an intended third-pa rty benef iciar y of contracts entered into among the parties. Alaniz , 175 Ill. App. 3d at 311. On appeal, he relied on
a provision in a co ntract between the gener al contractor and the subcontractor stating that " '[t]he subcontractor

*** has the

responsi bility for maint

a ining the safety

and loss pr

evention progra ms covering all work p erforme d by

it, and it s sub contr actors .' " Alaniz , 175 Ill. App. 3d at 311-12. The plaintiff argued that

the provision allowed him to maintain anaction against the subcontractor for personal injuries caused by unsa fe work conditions and

equipment. Alaniz , 175 Ill. App. 3d at 312. The court held that the contracting parties did not intend to confer a direct benefit to the plaintiff by including general languag e about safety and loss- prevent ion prog rams. Alaniz , 175 Ill. App. 3d at 312-13. Rather, they intende d to benefit just the ms el ve s b y setting forth their respective responsibilities during construction. Alaniz , 175 Ill. App. 3d at 313. The court stated, "Given the nature of the constructionindustry and the f requenc y with which c onstruct

ion injurie s occur d

espite safety precau ti ons, we do not believe the presumption [that parties stipulate for themselves in a contract and not for a t hird person ] has been ov ercome." Alaniz , 175 I ll. App. 3d at 313. The court further stated: "It is not enough that an incidental benefit wi ll flow to third parties; only a direc t beneficiary

has a righ t unde r a contract. [C itati on.] We believe that more than the general safety pr ovis ion found in the contract between [the subcontractor] and [the gene ral contractor] is required to evidence an intent to directly benef it plaint iff. While plaintiff would most likely have rec eived some benefit by implementation of

safety progra ms, suchNo. 2--09--0347

-19-

benefit is incidental to the direct benefit intended for the contracting parties, and thus is not sufficient to allow him to maintain an action on the contract. Plaintiff's action is better characterized as a tort acti on." Alaniz , 175 Ill. App. 3d at 314-15. Dodd argues that, as in Alani z , p laintiff may not rely on general safety

language to crea

te a contractual duty

of care toward h im. Porter argues that no duty

was created by

its signing a standardized form contract that refers to only safety provision s of a ge

neral nature. Porter

cites Americ an S tat es I

nsu rance C o. v . A. J. Magg io Co. , 229 Ill. App. 3d 422 (1992). There, a subcontr actor' s insurance compa

ny brought s

uit agains tthe general contractor to re cover damages sustained as a resul t of th e subc ontra ctor's employee slipping and fall i ng on ice. The plaintiff alleged tha t the defendant failed to provide a
reasona bly safe workplace as required by its contract with the subcontractor. American States Insurance Co. , 229 Ill. App. 3d at 423. I t relied on a provision stating that the contractor " ' shall take
reasona ble precautions for safety of, and shall provide reasonable prot ect ion to prevent damage, injury or loss to *** employees on the Work and other persons wh o may be affect ed the reby.' " American States Insuranc e Co. , 229 Ill. App. 3d at 424-25. The appellate c ourt stated that the contract "i mposes a duty of a ver y ge neral nature to maintain the work area in a r easonably sa

fe condition--a

duty no gre ater than would be imposed at common law on an owner or occupier of the property." American States Insuranc e Co. , 229 Ill. App. 3d at 426. The court further stated that

a defend ant's duties will not be expa n ded bey ond the sc ope of du

ties desc ribed in the contra

ct. American States Insurance

Co. , 229 Ill. App. 3d at 426. The court held that the duty claimed by

the plaintiff went beyond the a

greement of the parties beca use the defendant assumed a duty no gre ater thanthat which would ordinarily be expected of a landowner, and the contract did not conta in anNo. 2--09--0347

-20-

express provision requiring the removal of snow and ice from the construction site. American States Insurance Co. , 229 Ill. App. 3d at 427. Returning to the sp ecific contractual provisions relied on by plaintiff here, the first one requires the contractor to evaluate and be responsible f or the job site safe

ty o f means, methods, techniqu es, sequenc es, or pr

ocedure s for whic

h th e contra ct docume

nts provid

e "spec ific instructions." Plaintiff does notpoint to an y sp ecific i

nstruction in the contract d ocuments requiring defenda nts to level the ruts or maintain the ground ina certa in manner , so he may

not rely on this provision to crea

te a duty. The sec ond provision requires the contractor to initiate, maintain, and supervis e all safety pre cautions and programs. This provision is similar to the one at issue in Alaniz
. It does not identify plaintiff by name or describe a class to which he belong s and therefore does not confer a third-party-

beneficiary

status to plaintiff. Instead, as in Alaniz , by usin g general langua ge about safety pre cautions and programs, the co ntracting parties intended to benefit just themselves by allocating the ir r esponsibilities on this subject, and any benefit to plaintiff would be inc idental rather than direct. The third provision plaintiff relies on requires the contr actor to take re asonable precautions for the safety

of, and provide reasonable protection to prevent injury to, employ ees and others on the site. T

he contr actual la nguag e is almost

identica l to that at issue in American States Insurance Co. , and under

that case, such language

does not impose a d

uty great er than t hat which is
or di na ri ly o we d b y a

landowne

r. As we a

lready conclude d that def

endants d id not owe plaintiff a common-la

w duty under se ction 343, plaintiff 's reli ance on

this provis ion fails a s well. Plaintiff additiona lly argues that his complaint alleges a duty under the theory

of construction negligence, which should be viewed under section 414 of the Restatement (Second) of Torts and not solely under section 34 3. Defendants point out that plaintiff did not raise a section 414 theory ofNo. 2--09--0347

-21-

rec overy in the tria

l court, a nd Dodd ar

gues tha t plaintif f thus has forfeit ed such a n argu me nt o n appea l. Plaintiff argues that his theory of construction negligence is pre sent in his amended complaint and has been litigated throughout the ca se. However, we agree that by never raising section414 in th e trial cou rt, plaintiff may not rely on it now to reverse summary judgment. See Norman v. Brandt , 397 Ill. App. 3d 1074, 1079 (2010) (the plaintiffs forfeited their contention that
a section of the Restatement applied to the facts of their case, because they

raised that section for the first time on appeal). Inany eve

n t, section 414 does not sa ve plaint iff's c laims. I

n gene ral, a pa rty that entr usts work to an inde

pendent c ontract

or is not lia

ble for that contractor's acts or omissions. Calderon v. Residential Homes of America, Inc. , 381 I ll. App. 3d 333, 340 ( 2008). An

exception

to this rule

is provided by s ection 41 4, which s tates: "One who entrusts work to an independent contractor, but who retains the control of any part of

the work, is subject to liability for phy sical harm to others for whose safety the employer owes a du

ty to exercise reasonable care, which is cause d by h is failur e to exerc ise his control with reasonable care." Restateme nt (Second) of Torts §414 (1965). This exception

is known as the "retained control exceptio n." Madden v. F.H. Paschen/S.N. Nielson, In c . , 395 Ill. App. 3d 362, 380 (2009). Such liability usually arises whe

re a general contra

ctor subcontr acts work b ut su perin tends the jo b him self o r thro ugh a foreman. Pekin Insurance Co. v. Hallmark Homes, L .L.C. , 392 I ll. App. 3d 589, 591 ( 2009). The gene ral contractor may be vicario usly liable for the subcontr

actor' s neglig ence if

it retain s control

over the operati ve detai ls of the subcontr

actor' s work, or

it may be directly

liable for not exer

cising i ts supervis ory

control w

ithNo. 2--09--0347

-22-

re asonable

care. Calderon , 381 Ill. App. 3d at 341; see Restatement (Second) o f Torts §414 , Comment a , at 387 (1965). Fo r s ec ti on 41 4 t o a pp ly: "[T]he employer must have retained at least some degree of control over the manner inwhich th e work is don e. It is not enough that he ha s merely a g eneral right to order the work stopped or resumed, to inspect its progress or to rece ive reports, to make suggestions
or recommendations which need not necessarily

be followed, or to prescribe alterations and deviatio ns. Such a g eneral right is usually reser

ved to employers, but

it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contra ctor is not entirely free

to do the work in his

own way ." Resta

tement (Se cond) of

Torts §414 , Comment c , at 388 (1965). "The mere existence of

a safet y pr ogram, safety

manual, or safety

director is insuff

icient totrigger this exc eption." Madden , 395 Ill. App. 3d at 382. "The best indicator

of whether a contractor has re tained control over the subcontractor's wor k is the parties' cont ract, if one ex ists." Downs v. Steel & Craft Builders, I nc. , 358 I ll. App. 3d 201, 205 (2005). Porter argues that there is no evidence that there was a contract between it and Jones & Brown a

nd points ou

t that Ba rr testif ied that b oth it

and Jones & Brown were hired directly by OSD 308. Porter also argues that there is no evidence that it tookan activ e role in ensuring safety
or that it retained control over the incidental aspects of plaintiff's work. Dodd similarly points to the lack of evidence of contracts between it and Porter and it and Jones & Brown, and Dodd argues that it is impo ssi ble to know t he ex tent o f cont rol, i f any, that it had over ei ther P orter 's or pl ainti ff's work. We agree that the lack of evidenc e of a contract between the re spect ive companiesNo. 2--09--0347

-23-

undermines plaintiff's argument. Cf. Mois eyev v. Ro t's Build ing & Development, Inc. , 369 Ill. App. 3d 338, 351 (2006) (considering a lac k o f a contract between the g eneral contractor and subcontractor

as evidence of no duty

under section 414). Even if w e constr ue the contracts

between defenda nts and OSD 308 as giving defendants a general r

ight to ensure that safety

precautions were being exercise d and that

work was done in a safe manner, there is no indication that they had control over the means and methods of an independent contrac tor's work, as is required to prevail under a section414 claim. See Ross v. Dae Julie, Inc. , 341 Ill. App. 3d 1065, 1071 (2003). In other word s, there is no evidence that Dodd controlled the operative details of Porter's work or that Porter was not free to do its work in its own way. See Joyc e v. Mast ri , 371 Ill. App. 3d 64, 75-76 (2007). The evidence also show s that def endants d id not cont

rol plaint i ff 's work. Accordingly

, plaintiff's reliance on section 414 is not persuasive. Last , plaintiff

argue s that the t

rial cou rt faile d to giv e prop er weight to the "Statement of Opinions" of Kennet

h Yotz, whi ch was a ttach ed to p laint iff's m otio n to re consi der. P laint iff's motion to reconsider

stated that Yotz: was the senior vice president of Environmental, Manage ment and Training Syst ems, Inc.; had ov er 38 yea rs of experience in the construction industry ; and specialized

in occupa

tional and environ

mental he alth and s afety

issues. In the signed " Statement of Opinions," Yotz opinedthat: Dodd controlled the work performed by

Jones & Brown and plaintiff; Porter create d the haza

rdous rut s w ith its lulls; defendants failed to conduct frequent and regular inspections of the jobsite, as required by OSHA standards; and Dodd failed to maintain access and pedestrian

roads, to maintai

n means of

egres s free o f impedime

nts, and to clear passageway s for the safe movement of workers, all in violation of OSHA stan

dards. Y otz opined that these failures were the proximate cause of plaintiff's fall and resulting injuries.No. 2--09--0347

-24-

Defend ants argue that the trial court properly disregarded Yotz's statement beca use it was substantia lly insuffic ient unde

r Supreme

Court Rule

191 (210 Ill. 2d R. 191), which states in relevant part: "Affid

avits in support of

and in opposition to a motion for summary judgment under section 2--1005 of the Code of Civil Procedure *** shall be mad e on th e perso nal kn owled ge of the affian ts; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shallhave attac hed thereto sworn or certified copies of a ll papers upon whichthe affiant

relies; shall not consist of conclusions but of facts admissible in evidence; and shallaffirmatively show

that the affiant, if sworn as a witness, can testify compete ntly thereto." 210 Ill. 2d R. 191. Defend ants argue that Yotz' s stateme

nt did not lis t the facts upon which Yotz based his opinions or include copies of all the papers on which Yotz relied. See Robidoux v. Oliphant , 201 Ill. 2d 324, 334-35, 339-40 (2002) (under the plain language of Rule 191, aff idavits submitted in support of or inop po si ti on to su mm ar y judgmentmust consist of facts admissible in evidence rather than conclusi ons, and they must have a ny supporting pa

pers attached). Defendants als o argue that contrary to Rule 191, Yotz's statement does not qualify as an af fidavit because it does not appear that he took an oath. See Robidoux , 201 Ill. 2d at 343 (affidavit under Rule 191(a) does not need to be verified, but the affiant's name must appear as one who has ta

ken an oa th). Def endantspoint out that they objected to the state

ment at the hearing on plaintiff's motion to reconsider. Plaintiff notes tha t in his init ial response to the summary judg ment motions, he attached a Rule 191 af

fidav it si gned by his attor ney. Plai ntiff 's atto rney averre d that altho ugh the parties were notyet require d to disclose opinion witnesses, he had discussed the case with several potential expertNo. 2--09--0347

-25-

witnesse s, and at the time of trial, plaintiff would present expert testimony regarding the violations of applicable OSHA standards and other standards ac cepted in the construction industry . Plaintiff argues that Yotz' s affida

vit was int

ended to suppl ement his at torne y's affidavit, and he points out that the trial court did not strike Yotz's statement. Defend ants counter that regardless of Rule 191 co mpli ance, t here is no reas on Yot z's statement could not have bee

n submitted

earlier , in time for th e initial dec ision on summary judgmen t. We agree with defendants' position. A motion to reconsi der is m eant to bring to the trial court 's attention newly discover ed evidence not available at the prior hea ring, changesin the la

w,
or errors in the trial court's application of existing law. Cay wood v. Go ssett , 382 Ill. App. 3d 124, 133 (2008). A ruling on a motion to reconsider is ty pically reviewed

for an abuse of discretion, but
a motion to reconsider

a grant of summary

judgment typica

lly questions the trial court' s application of existing la

w, a nd the denial of such a motion is reviewed de novo
. Duresa v. Commonwe alth Edison Co. , 348 I ll. App. 3d 90, 97 (20 04). To th e extent tha t p laintiff sought t o have Yotz 's statement co ns id er ed as ne wl y discovere d evidence, it would not qualify be cause there is no indication that it

was not available prior to the hearing on the motions for summary judgment. See Landeros v. Equity Property & Development , 321 I ll. App. 3d 57, 65 (20 01). " ' Trial co urts shoul d not allow litigants to stand mute, lose a motion, and then frantically

gather evidenti ary

materia l to sho w that the cou rt erred in it s ruling.' " Landeros , 321 Ill. App. 3d at 65, quoting Gardner v
. Navistar International Transporta

tion Corp. , 213 Ill. App. 3d 242, 248 (1991). The statement

would also not qualify asa supp lemen t to p laint iff's attorney' s affidavit because, in addition to the fact that it was from a different individual, even a revise d ex pert aff idavit wou

ld have to

contain newlyNo. 2--09--0347

-26-

discovered evidence in order to be prope r for a motion to reconsider. See Landeros , 321 Ill. App. 3d at 66. Finally, as

Dodd point s out, Yotz re lies on OSH A regu lations, b ut OSHA re gulations in and of themselves do not create a du ty of care. Recio v. GR-MHA Corp. , 366 Ill. App. 3d 48, 58 (2006). Ac co rd in gl y, the trial court did not err in accord ing little or no wei ght to Yo tz's state ment, or in denying

plaintiff's motion to reconsider. III. CONCL

USION For the foregoing r

easons, we conclude that the trial court did not

err in granting summary judgment for def endants or in deny

ing plai n tiff's motion to reconsider. We therefore affirm the ju dg me nt of

th e c ir cu it co ur t o f K en da ll Co un ty. Affirmed. McLAREN and JORGENSEN, JJ., concur.