Appeal from the Circuit Court of Cook County. Honorable Victoria A. Steward, Judge Presiding.
Gordon, Justice Cahill and Burke, JJ., concur.
The opinion of the court was delivered by: Justice Gordon
The plaintiff, Jeff Menough, brought this action to recover for injuries he sustained while playing basketball on a basketball court located on the property of the Woodfield Gardens apartment complex. The trial court granted summary judgment to Woodfield Gardens, hereinafter referred to as defendant, *fn1 finding that the hazard which caused plaintiff's injury was open and obvious. The plaintiff appeals contending that the hazard was not open and obvious as a matter of law and, even if open and obvious, the defendant nonetheless owed him a duty to make its property reasonably safe. For the reasons discussed below, we reverse and remand.
Summary judgment is appropriate only where the pleadings, affidavits, depositions, admissions, and exhibits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1996); Glass v. Pitler, 276 Ill. App. 3d 344, 657 N.E.2d 1075 (1995). In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits in the light most favorable to the nonmoving party. E.g., First State Insurance Co. v. Montgomery Ward & Co., 267 Ill. App. 3d 851, 642 N.E.2d 715 (1994). If fair-minded persons could draw different inferences from the undisputed facts, the issues should be submitted to a jury to determine what inference seems most reasonable. E.g., Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992); Anglin v. Oros, 257 Ill. App. 3d 213, 628 N.E.2d 873 (1993). Appellate review of an order granting summary judgment is de novo. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606, 663 N.E.2d 1 (1995); Shull v. Harristown Township, 223 Ill. App. 3d 819, 585 N.E.2d 1164 (1992).
The undisputed facts showed that the plaintiff, was injured on June 13, 1991 while playing basketball in a lot at the Woodfield Gardens apartment complex in Rolling Meadows, Illinois. The basketball court at the complex consisted of a single pole anchored inside a concrete-filled tire. The front half of the tire extended in front of the pole, and the back half of the tire extended behind the pole. The backboard and net were attached directly to the pole. The backboard was flush with the pole so that the tire extended to the front of the backboard and within the area of play.
In his deposition, the plaintiff testified that he and Paul Amos accompanied Kevin Pleasant, who was a resident of the apartment complex, as his guests, to the basketball court of the apartment complex to play a "pick-up" game. For about five minutes, they watched a game in progress and then played the winners of that game. During the course of play, the plaintiff made a "lay-up shot" at the net. When his foot came down, it landed on the tire, snapping plaintiff's ankle. The plaintiff sustained a severe fracture and sprain in that ankle.
The plaintiff testified that he had not played on the basketball court at the Woodfield Gardens apartment complex prior to the date he was injured. He stated that he first became aware of the tire under the basketball net when he fell on it. He stated that no one warned him of the danger posed by the tire. The plaintiff, who was 22 years old at the time of his injury, testified that prior to June 1991 he had played grade school park district basketball, high school league basketball and college intramural basketball.
In its motion for summary judgment, defendant Woodfield Gardens argued that the risk of harm posed by the tire was open and obvious and that, as a result, it owed no duty to the plaintiff to remedy that condition. It further argued that the "distraction or forgetfulness" exception to the open and obvious doctrine, articulated in Ward v. K Mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990) and Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 438-39, 566 N.E.2d 239, 243 (1990), did not apply under the facts presented. The plaintiff responded by arguing that the dangerous condition caused by the construction and configuration of the net, backboard and pole was not open and obvious to the plaintiff or to any reasonable person. The court granted defendant's motion for summary judgment.
Under the Premises Liability Act, an owner or occupier of premises owes a duty of "reasonable care under the circumstances" to entrants who are not trespassers. Ill. Rev. Stat. 1991, ch. 80, par. 302 now codified at 740 ILCS 130/2 (West 1996). Whether one person owes another a duty of reasonable care under a particular set of circumstances is an issue of law for the court. E.g., Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826 (1996); Ward, 136 Ill. 2d 132, 554 N.E.2d 223. Under Illinois law, persons who own, occupy or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious. Bucheleres, 171 Ill. 2d at 447-48, 665 N.E.2d at 832. The law generally assumes that persons who encounter conditions such as fire, height and bodies of water will take care to avoid any danger inherent in such conditions. Bucheleres, 171 Ill. 2d at 448, 665 N.E.2d at 832. See Ward, 136 Ill. 2d at 148, 554 N.E.2d at 230, stating,
"Certainly a condition may be so blatantly obvious and in such position on the defendant's premises that he could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition."
The existence of an open and obvious condition is not a per se bar to the finding of a legal duty, however. Bucheleres, 171 Ill. 2d at 449, 665 N.E.2d at 833; Ward, 136 Ill. 2d 132, 554 N.E.2d 223. As stated in section 343A of the Restatement (Second) of Torts, cited with approval by our supreme court in Ward, 136 Ill. 2d at 149-51, 554 N.E.2d at 231-32:
"(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts §343A (1965).
According to comment f to that section, also cited in Ward,
"[R]eason to expect harm to visitors from known or obvious dangers may arise 'where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. * * * In such cases the fact that the danger is known, or is obvious, is important to determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in determining the duty of the possessor, or whether he has acted ...