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Bonner v. City of Chicago

October 04, 2002

RAYMOND J. BONNER, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 99 L 9857 Honorable Mary A. Mulhern, Judge Presiding.

The opinion of the court was delivered by: Justice Tully

Released for publication October 11, 2002.

RAYMOND J. BONNER, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Cook County. No. 99 L 9857 Honorable Mary A. Mulhern, Judge Presiding.

The opinion of the court was delivered by: Justice Tully

PUBLISH

Plaintiff Raymond J. Bonner filed a negligence action against defendant, the City of Chicago (City), seeking damages for injuries he sustained when he tripped on a light pole base on the sidewalk in the 3900 block of North Damen Avenue. The trial court granted defendant's motion for summary judgment. Plaintiff appeals, claiming that summary judgment was improper because a jury should have decided whether plaintiff's injury was foreseeable and the City breached its duty of reasonable care. We affirm.

The pleadings, affidavits, depositions and photographs before the trial court established the following facts. On June 3, 1999, the 72-year-old plaintiff drove from the currency exchange he owned at 3536 West Armitage Avenue in Chicago to the Corus Bank branch at Irving Park and Lincoln Avenues. He was carrying $4,000 in cash in a paper bag and checks for deposit at the bank. Plaintiff parked his car at a meter along the curb in the 3900 block of North Damen Avenue, exited the car, stepped on the sidewalk and began walking toward the bank. He immediately noticed that two men in their early twenties appeared to be staring at him from a bus stop about 70 feet away. Plaintiff became suspicious, fearing that the men might rob him. The men were standing still and looking in plaintiff's direction, but they did not speak or walk toward him. Plaintiff never took his eyes off the suspicious men, and he walked near the curb so he could quickly return to his car if the men approached him. After walking a short distance, plaintiff tripped over the light pole base which consisted of a 12-inch-wide cluster of four bolts on a raised concrete foundation. Each bolt protruded about three inches from the surface of the sidewalk. As a result of his fall, plaintiff suffered a fractured left shoulder which required surgery and physical therapy and limited his ability to work. He also fractured a bone in his right hand and sustained lacerations to his face requiring five sutures to close.

According to a bystander's report, the trial court granted the City's motion for summary judgment based on its finding that plaintiff's distraction was not reasonably foreseeable.

On appeal, plaintiff contends that summary judgment was improper because a question of fact existed as to whether the City had a duty of reasonable care because it was foreseeable that a pedestrian would be distracted and fail to see the open and obvious light pole base. Alternatively, plaintiff contends that even if the harm was not foreseeable, the City still had a duty of reasonable care because injury to pedestrians was likely and the burden on the City to protect pedestrians from the hazard was negligible. The City responds that summary judgment was proper because plaintiff did not dispute the fact that the condition was open and obvious, and did not present a legally sufficient reason as to why the City should have foreseen that plaintiff would be distracted.

A cause of action for negligence requires the plaintiff to establish that the defendant owed a duty of care and breached that duty resulting in an injury proximately caused by the breach. Curatola v. Village of Niles, 154 Ill. 2d 201, 207 (1993). Whether a duty of care exists is a question of law which may be determined on a motion for summary judgment. Curatola, 154 Ill. 2d at 207. In summary judgment cases, we review the evidence de novo and construe all evidence strictly against the moving party and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). "A motion for summary judgment should be granted only where the pleadings, depositions, admissions and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." First of America Trust Co. v. First Illini Bancorp, Inc., 289 Ill. App. 3d 276, 283 (1997).

Duty Based on Foreseeability

The Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1 et seq. (West 2000)) governs the tort liability of municipalities. West v. Kirkham, 147 Ill. 2d 1, 5 (1992). According to section 3-102(a) of the Act, "a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***." 745 ILCS 10/3-102(a) (West 2000). The factors relevant to the question of whether a duty exists are: "(1) foreseeability that defendant's conduct will result in injury to another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon the defendant." Curatola, 154 Ill. 2d at 214.

Parties who own or control land are not required to foresee and protect against injuries if the potentially dangerous conditions are open and obvious. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-48 (1996). "The term 'obvious' means that 'both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.'" Deibert v. Bauer Brothers Construction Co., Inc., 141 Ill. 2d 430, 435 (1990), adopting the definition of "obvious" in the Restatement (Second) of Torts ยง343A, Comment b, at 219 (1965). Accordingly, whether a condition is obvious ...


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