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10/19/89 the City of Chicago Et Al. v. the City of Chicago Et Al.

October 19, 1989

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION VINCENT NALLY ET AL., PLAINTIFFS-APPELLANTS

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES



546 N.E.2d 630, 190 Ill. App. 3d 218, 137 Ill. Dec. 685 1989.IL.1648

Appeal from the Circuit Court of Cook County; the Hon. Dean Sodaro, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. LINN and JOHNSON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The plaintiffs, Vincent and Roseann Nally, sued to recover damages for injuries sustained when Vincent Nally suffered hearing loss from exposure to ground aircraft noise at O'Hare International Airport. The defendants filed a section 2-615 motion to dismiss the complaint on the grounds that no duty existed because the danger posed by the noise was open and obvious. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) The trial court granted the defendants' motion to dismiss, and the plaintiffs have appealed. They contend on appeal that the trial court erred in dismissing their complaint for failure to state a cause of action and in denying their motion to file an amended complaint.

The complaint alleged that Vincent Nally was a telephone repairman assigned to repair telephones in and around terminals, runways and other areas of O'Hare airport. His duties required that he travel to and from various parts of the airport, "including across and through and on airport runways and taxi strips." The defendants issued Nally a pass to travel in these otherwise restricted areas and were aware of his presence in those areas. Several aircraft also traveled on the runways and taxi strips, frequently generating excessive and dangerous levels of noise.

On February 13, 1985, Nally was in his repair truck "on or near the main airplane taxi strip" in transit to an assignment on airport premises. At that time, a large jet aircraft passed down the main airplane taxi strip "revving its engines and thereby creating a dangerous and excessive level of noise." The noise caused Nally to experience a sudden popping sensation in his ears with a subsequent loss in hearing capacity.

The complaint contained five counts. Count I sounded in negligence and alleged that the defendants breached the duty of care owed to Nally by failing to warn him of the excessive noise levels, by failing to prevent him from entering dangerous areas and by issuing him a pass to travel in areas restricted because of the dangerous levels of noise. Count II alleged willful and wanton misconduct, count III alleged breach of a statutory duty to maintain the airport in a reasonably safe condition and count IV alleged strict liability based on ultrahazardous activity. *fn1 Count V alleged loss of consortium by Vincent Nally's wife Roseann Nally.

The defendants filed a section 2-615 motion to dismiss the complaint on the basis that no duty existed because the danger posed by ground aircraft engine noise was open and obvious. Following a hearing on the motion, the trial court dismissed the complaint. The plaintiffs subsequently filed a motion to reconsider, or in the alternative, to vacate the dismissal order with leave to file an amended complaint. The amended complaint attached to the motion cited the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 301 et seq.) and contained additional allegations that the defendants did not provide Nally with equipment sufficient to guard against excessive noise levels and failed to give notice of the conditions to persons entering the restricted areas. The amended complaint further alleged that Nally had no knowledge that a jet aircraft would be revving its engines and creating a dangerous and excessive level of noise in the area where he was located at the time of the occurrence and that he would not have entered that area had he known of the excessive and dangerous levels of noise. The trial court denied the plaintiffs' motion for leave to file the amended complaint.

The plaintiffs first contend that the trial court erred in dismissing the complaint on the grounds that no duty existed because the danger posed by ground aircraft engine noise was open and obvious. The plaintiffs make two arguments in support of this contention. First, they maintain that the question of whether the danger was so obvious that the defendants could have reasonably expected Vincent Nally to discover and appreciate it was a question of fact which should not have been determined on a motion to dismiss. Second, they argue that even if the danger was open and obvious, the defendants should have anticipated that Nally acting as a reasonable person would have proceeded to encounter it despite the obviousness of the danger.

In support of the first argument, the plaintiffs cite Steinhauer v. Arnie Bauer Cadillac Co. (1988), 172 Ill. App. 3d 314, 526 N.E.2d 577. In Steinhauer, the plaintiff was directed to seat herself in a chair located near a half wall in the defendant's sales office. As she did so, she struck her head on a ledge which protruded from the top of the wall. The trial court granted summary judgment in favor of the defendant on the grounds that the danger posed by the ledge was obvious. The appellate court reversed, holding that the determination of whether the ledge was so obvious that the defendant could reasonably expect the plaintiff to discover it and realize its danger was a question of fact and that summary judgment was therefore inappropriate.

We agree with the proposition stated in Steinhauer that the degree of care exercised by the plaintiff and the obviousness of the danger are ordinarily questions of fact. However, such questions of fact may be decided as a matter of law where reasonable men of fair understanding could not disagree as to the Conclusions resulting from the facts. Morrison v. Forest Preserve District (1987), 155 Ill. App. 3d 687, 689, 508 N.E.2d 312.

The case at bar is clearly distinguishable from the fact situation presented in Steinhauer. In reaching its determination that the obviousness of the danger was a question of fact, the Steinhauer court noted that "the plaintiff cannot be charged with having entered the defendant's property to conduct an activity which by its nature would have put her on notice of a potential danger. She was merely performing a common act at the invitation of [the] defendant when she was injured." (Steinhauer, 172 Ill. App. 3d at 318, 526 N.E.2d at 579.) In contrast, the plaintiffs here alleged that Vincent Nally's job required him to drive a truck across the runways at O'Hare airport. Given the open and obvious nature of the noise emitted by large jet aircraft and the potentially dangerous setting in which Nally worked, we believe that as a matter of law the plaintiff in the exercise of due care would have been able to discover and appreciate the danger. Thus, no duty existed. Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942.

The plaintiffs' second argument, that a duty existed despite the obviousness of the danger, is based upon section 343A of the Restatement ...


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