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Belluomini v. Stratford Green Condominium Association

February 27, 2004

[5] HELGA BELLUOMINI, PLAINTIFF-APPELLANT,
v.
STRATFORD GREEN CONDOMINIUM ASSOCIATION, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Du Page County. No. 00-L-159 Honorable John T. Elsner, Judge, Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'malley

[8]  Plaintiff, Helga Belluomini, sued defendant, Stratford Green Condominium Association, for injuries sustained when she tripped over a bicycle that was located on defendant's property. The trial court granted defendant's motion for summary judgment. The trial court found that defendant owed no duty to plaintiff because the bicycle was an open and obvious condition and that the distraction exception to the rule that no duty is owed for open and obvious conditions did not apply. Plaintiff appeals. We affirm.

[9]  In her amended complaint, plaintiff alleges that she sustained serious injuries when she tripped and fell over a bicycle that was located in the common area of a condominium complex that was owned and operated by defendant. Plaintiff alleges that defendant was negligent because it did not remove the bicycle from the common area, because it failed to demand that the owners of the bicycle remove it from the common area, and because it permitted the owners of the bicycle to store the bicycle in the common area. Plaintiff also sued various members of the family that allegedly owned the bicycle; however, this appeal does not concern that portion of the suit.

[10]   On July 25, 2002, defendant filed a motion for summary judgment, contending that there was no genuine issue of material fact. Specifically, defendant contended that plaintiff's discovery deposition showed that the bicycle was an open and obvious condition and that plaintiff was not distracted. Thus, according to defendant, it owed no duty to plaintiff.

[11]   In her discovery deposition, plaintiff described the circumstances of her accident. On March 13, 1998, at approximately 3:45 p.m., plaintiff was leaving her apartment for work. Plaintiff carried a medium-sized purse in her right hand. Plaintiff moved from the hallway outside her apartment into the entryway of the building by opening a door. The entryway of the building contained a child's bicycle that was chained to the railing of a staircase. Plaintiff noticed the bicycle when she opened the door to the entryway. The bicycle was chained in a standing position. Plaintiff testified that the rear wheel of the bicycle protruded out from the railing "over a foot." We note that, while plaintiff's testimony about the location of the rear wheel of the bicycle comes directly after her statement that she saw the bicycle immediately upon opening the door to the entryway of the building, she does not explicitly state that she noticed the location of the rear wheel of the bicycle before the accident. Plaintiff testified that as she proceeded toward the exit, she was looking at the outside door of the building and not the bicycle. Plaintiff did not recall how many steps she took before coming into contact with the bicycle. Plaintiff fell when the rear wheel of the bicycle came into contact with her thighs. Plaintiff sustained injuries to her left hand as a result of the fall.

[12]   One of the issues in this case is whether there is evidence that plaintiff was distracted when she tripped over the bicycle, because she was carrying a garbage or laundry bag. Mary Bruce, plaintiff's property manager at the time of the accident, testified that, upon her arrival at the scene of the accident, she observed the bicycle and a dark bag containing garbage or laundry in the entryway of the building. According to Bruce, plaintiff told her that she had been carrying the bag. Bruce recalled picking up the bag and taking it to plaintiff's apartment. Plaintiff, however, specifically contradicted this testimony. She stated in her deposition that she was not carrying a garbage bag at the time of her injury and that she never told anyone that she was carrying a garbage bag. Plaintiff testified that she carried only a medium-sized purse at the time of her injury. According to plaintiff, the purse did not obstruct her vision.

[13]   On October 2, 2002, the trial court granted defendant's motion for summary judgment with prejudice. In doing so, the trial court specifically noted that the bicycle was an open and obvious condition and that there was no competent evidence that plaintiff was distracted. Plaintiff timely appeals.

[14]   On appeal, plaintiff contends that the trial court erred in finding, as a matter of law, that the bicycle was an open and obvious condition and that the distraction exception to the rule that there is no duty of care for an open and obvious condition did not apply. We review de novo a trial court's grant of summary judgment. Buchaklian v. Lake County Family Young Men's Christian Ass'n, 314 Ill. App. 3d 195, 199 (2000). Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions 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. Buchaklian, 314 Ill. App. 3d at 199.

[15]   The issue in this case is whether the trial court erred in finding as a matter of law that defendant owed no legal duty to plaintiff. If defendant owed no duty, there will be no liability, because a legal duty is a prerequisite to liability. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447 (1996).

[16]   In Illinois, factors that are relevant to the determination of duty include: (1) the likelihood of injury; (2) the reasonable foreseeability of injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant. Bucheleres, 171 Ill. 2d at 456.

[17]   Plaintiff phrases her argument in terms of the open and obvious doctrine which, as will be explained, is closely related to the four-factor test described above. Under the open and obvious doctrine, " '[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.' " Deibert v. Bauer Brothers Construction Co., Inc., 141 Ill. 2d 430, 435 (1990), quoting Restatement (Second) of Torts, §343A(1), at 218 (1965). While the general rule is that a defendant owes no duty to protect against a known or open and obvious condition, *fn1 the fact that a condition is known or obvious is not a per se bar to the existence of a duty, because a defendant will still owe a duty where he should anticipate the harm despite the obviousness of the condition. See Deibert, 141 Ill. 2d at 435.

[18]   The two "exceptions" to the open and obvious doctrine provide examples of circumstances where a defendant has reason to anticipate harm despite the obviousness of the condition. Under the "forgetfulness" or "distraction" exception, a landowner will owe a duty to a plaintiff to protect against a known or obvious condition where it is reasonably foreseeable that the plaintiff will be distracted or forget about the condition after having momentarily encountered it. Ward, 136 Ill. 2d at 152. Similarly, the "deliberate encounter" exception imposes a duty where the landowner has reason to anticipate that the plaintiff will proceed in the face of the known or obvious danger because the benefit of doing so outweighs the apparent risk. Preze v. Borden Chemical, Inc., 336 Ill. App. 3d 52, 57 (2002), citing Restatement (Second) of Torts §343A, Comment f, at 220 (1965).

[19]   The open and obvious doctrine addresses substantially the same issues as the first two factors of the four-factor duty test. Bucheleres explains the relationship between the open and obvious doctrine and the four-factor duty test. The first factor of the duty test is the likelihood of injury. For open and obvious conditions, the law generally considers the likelihood of injury slight because it is assumed that persons encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks. Bucheleres, 171 Ill. 2d at 456. The second factor in the duty test is the reasonable foreseeability of the injury. Injuries caused by open and obvious conditions are unlikely to be reasonably foreseeable because the legal concept of foreseeability takes into account that people will generally appreciate the risks associated with such conditions and therefore exercise care for their own safety. Bucheleres, 171 Ill. 2d at 456-57; see also Sollami v. Eaton, 201 Ill. 2d 1, 17 (2002). Conversely, where one of the exceptions to the open and obvious doctrine applies, the outcome when analyzed under the first two factors is reversed because, where an invitee is likely either to fail to apprehend the danger because he is distracted or to deliberately encounter the danger because of a lack of a better alternative, an injury is both likely and foreseeable. See, e.g., Ward, 136 Ill. 2d at 154.

[20]   The latter two factors of the duty test, the magnitude of the burden of guarding against injury and the consequences of placing that burden on the defendant, take into consideration policy concerns regarding the efficient placement of the burden of avoiding injury. In Deibert, for example, where the plaintiff testified that he was distracted by falling debris at a construction site, causing him to trip over a five-inch rut while exiting a portable toilet, the supreme court's decision that the defendant owed the plaintiff a duty to protect against the rut was partially based on the fact that defendant's burden in moving the portable toilet away from the falling debris and the rut was slight. Deibert, 141 Ill. 2d at 440. In Bucheleres, efficiency concerns cut the opposite direction. There, ...


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