Appeal from the Circuit Court of Cook County. No. 01 L 16639. The Honorable Kathy M. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Fitzgerald Smith
Plaintiff Catalina Sandoval (plaintiff) brought suit against defendant City of Chicago (defendant) after she fell in a crater-like defect on a sidewalk. Upon defendant's motion, the trial court granted summary judgment in its favor. Plaintiff appeals, contending that the trial court erred in granting the motion because defendant owed a legal duty to her since it was foreseeable that a person could be distracted from the defect and because the court's order was premised on "unsupportable issues" not "sustainable for purposes of summary judgment." She asks that we reverse the trial court's decision and remand this cause for further proceedings. We affirm.
The following facts have been adduced from plaintiff's complaint at law sounding in negligence and her deposition, as they appear in the record on review.
Plaintiff testified that on October 9, 2001, she was caring for her neighbor's young son at her home at 1830 West Erie Street in Chicago. At approximately 11 a.m., she took the child outside in front of her home near a parkway. As plaintiff was clearing leaves and trash from the area, the child walked away from her and towards her house. When she no longer saw the child, she became "concerned" that he may have wandered toward her yard and "afraid" that he would attempt to descend some stairs in the back of her house. She began walking toward her house and yard to find him when her left foot became wedged against a three- to four-inch-high elevation or "island" within a crater-like defect in the sidewalk in front of her home; plaintiff fell and fractured her left ankle.
Plaintiff testified that the sidewalk defect had been in the same location in front of her home for some four years before the accident, originating from what she believed to be an occasion when defendant removed an old tree from her street and planted a new one. The defect was in a five-by-six-foot square of the sidewalk with most of the concrete missing; the dirt underneath was exposed and in a mostly flat condition, except for the concrete island protruding from the dirt surface. Plaintiff stated that she had called her alderman about the defect one time before the accident, in May or June 2000. She had walked by the defect "millions of times" before the accident and admitted that she was aware of the condition on the day of the accident. Plaintiff further testified that at the time of the accident, nothing obstructed her view of the sidewalk where she fell, she saw nothing unusual about her surroundings and nothing was distracting her. She was standing near the defect the last time she saw the child as he was heading for the gate to her home; she was looking toward the gate when she fell.
Defendant moved for summary judgment, stating that it did not owe plaintiff a duty of care because the condition of the sidewalk was open and obvious. Plaintiff responded by alleging that defendant caused the defect two years earlier when it removed a tree and that the distraction exception applied to impose a duty. Defendant replied that it did not create the defect and, regardless, this was irrelevant to its assertion that the condition was open and obvious. The trial court granted defendant's motion for summary judgment; in so holding, the court commented that plaintiff presented no evidence that defendant created the defect, that it was aware of the defect or, plaintiff having admitted the defect was open and obvious, that it should have reasonably foreseen she would have become distracted and failed to appreciate the defect.
Plaintiff filed a "Motion for Rehearing" (i.e., a motion to reconsider), claiming that the court used improper bases for its decision, namely, that defendant's argument that it had not created the defect was raised for the first time only in its reply to her response to its motion for summary judgment and that the issue of whether defendant was aware of the defect was never addressed by the parties. The trial court denied plaintiff's motion, providing clarification of its prior order. The court stated that it had not based its grant of summary judgment in favor of defendant on the "argument" of whether defendant had created the defect or had notice but, rather, the court's mention of these concepts was simply "in addition to" the lack of evidence that defendant was aware of the defect, the lack of evidence that defendant should have reasonably foreseen plaintiff would have been distracted, and plaintiff's "own admission that the defect was open and obvious" (bold in original). The court noted that its comments had comprised merely a discussion of "various avenues of liability" and, essentially, were "irrelevant." The court clarified that, ultimately, the legal concept "upon which the ruling was based was that the defect was open and obvious and there was no evidence that [plaintiff] was distracted or any evidence that [defendant] should have reasonably foreseen that [she] would have become distracted."
On appeal, plaintiff restates her claims of error against the trial court's grant of summary judgment. Specifically, she asserts that summary judgment was improper for two prime reasons: substantively, because the distraction exception to the open and obvious condition rule applies thereby imposing a duty of care upon defendant with respect to the sidewalk, and procedurally, because the decision below was premised upon the "unsupportable issues" of creation (raised late by defendant) and notice (unaddressed by the parties below). Defendant counters that no legal exception applies to otherwise impose a duty in this situation and further argues that, as the trial court pointed out, creation and notice are irrelevant to this cause. We agree with defendant.
We first address plaintiff's substantive argument. In order to sustain her cause of action for negligence, plaintiff must establish that defendant owed her a duty of care; that is, she is required to prove that she and defendant stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff. See Bonner v. City of Chicago, 334 Ill. App. 3d 481, 483 (2002) (listing elements of negligence claim, all of which must be proven in order to impose liability); see also Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987). Whether a duty of care exists is a question of law, appropriately determined by the trial court on a motion for summary judgment. See Bonner, 334 Ill. App. 3d at 483; accord Curatola v. Village of Niles, 154 Ill. 2d 201, 207 (1993).
Summary judgment is proper when the pleadings, affidavits, depositions and admissions of record, construed strictly against the moving party, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Morris v. Margulis, 197 Ill. 2d 28, 35 (2001); accord Purtill v. Hess, 111 Ill. 2d 229, 240-44 (1986). While this relief has been called a "drastic measure," it is an appropriate tool to employ in the expeditious disposition of a lawsuit in which " 'the right of the moving party is clear and free from doubt.' " Morris, 197 Ill. 2d at 35, quoting Purtill, 111 Ill. 2d at 240. Appellate review of a trial court's grant of summary judgment is de novo (see Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992)), and reversal will occur only if we find that a genuine issue of material fact exists (see Addison v. Whittenberg, 124 Ill. 2d 287, 294 (1988)).
Unless plaintiff demonstrates that a duty is owed, there can be no negligence imposed upon defendant. See American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 26 (1992). The factors that must be considered in determining whether a duty exists are: (1) the foreseeability that defendant's conduct will result in injury to another; (2) the likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon defendant. See Bonner, 334 Ill. App. 3d at 484, citing Curatola, 154 Ill. 2d at 214; accord Sollami v. Eaton, 201 Ill. 2d 1, 17 (2002).
With respect to the first factor, namely, the reasonable foreseeability of injury, we note that Illinois law holds that persons or entities who own or control land are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious. See Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447 (1996); accord Bonner, 334 Ill. App. 3d at 484. "Open and obvious" conditions include those wherein the condition and risk are apparent to and would be recognized by a reasonable person exercising ordinary perception, intelligence and judgment in visiting an area. See Bonner, 334 Ill. App. 3d at 484. Thus, the determination of whether the condition is open and obvious depends not on plaintiff's subjective knowledge but, rather, on the objective knowledge of a reasonable person confronted with the same condition. See Bonner, 334 Ill. App. 3d at 484. This is because property owners are entitled to the expectation that those who enter upon their property will exercise reasonable care for their own safety. See ...