Appeal from the Circuit Court of Cook County. No. 06 L 7932 Honorable Eileen M. Brewer, Judge Presiding.
The opinion of the court was delivered by: Robert E. Gordon
PRESIDING JUSTICE Robert E. GORDON delivered the judgment of the court, with opinion.
Justice Palmer*fn1 concurred in the judgment and opinion. Justice Garcia dissented, with opinion.
¶ 1 Plaintiff Norma Waters appeals from the circuit court's grant of summary judgment to defendant City of Chicago (City) in her personal injury suit charging the City with negligence in maintaining a street barricade over a sidewalk. The plaintiff was injured when she tripped over the metal base of a street barricade upon being startled by the sudden noise of a jackhammer from a nearby construction site. The plaintiff contends the circuit court erred in granting summary judgment because two questions of fact remain: (1) whether the barricade she tripped over was an open and obvious condition, and (2) whether the defendant owed the plaintiff a duty of care under the distraction exception. We reverse.
¶ 3 The following facts were presented to the circuit court in pleadings, affidavits, photographs, admissions on file, a map, and in plaintiff's deposition. On August 22, 2005, the 72-year-old plaintiff was injured in a fall at the intersection of Milwaukee and Higgins Avenues in Chicago. Earlier, the plaintiff had walked on a sidewalk northwest along the east side of Milwaukee Avenue from her home at 4663 North Milwaukee Avenue. She eventually crossed to the west side of Milwaukee to stop at her bank and then at a McDonald's. She then began her return trip, walking in a southern direction on the sidewalk on the west side of Milwaukee back to Higgins Ave.
¶ 4 At the intersection of Milwaukee and Higgins, the plaintiff came upon street barricades at the crosswalk. The barricades had "metal barriers" at the bottom, which served as legs for the barricade structure. The metal base was "sticking out in the crossway." The plaintiff stepped over two of the metal bases. At her deposition, she testified: "[A]s I was starting over the third barrier, I heard a huge bang. And I turned my head just that second and down I went. I was so distracted. It was so noisy." After falling, the plaintiff saw that the source of the noise was a jackhammer being operated by a construction worker about 12 to 15 feet away from her. The plaintiff sustained an injury to her wrist in the fall, which required surgery.
¶ 5 The circuit court granted the City's motion for summary judgment. The court ruled that the condition of the barricades was open and obvious and that the distraction exception did not apply to impose a duty of care on the City.
¶ 7 Summary judgment is only appropriate when the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmovant, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2004); Sollami v. Eaton, 201 Ill. 2d 1, 6 (2002); Clifford v. The Wharton Business Group, 353 Ill. App. 3d 34, 39-40 (2004). Summary judgment is a drastic means of disposing of litigation and should only be allowed when the right of the moving party to judgment is clear and free from doubt. Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1027 (2005). If reasonable people can draw different inferences from undisputed facts, then summary judgment is inappropriate. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). The court should construe the evidence strictly against the movant and liberally in favor of the opponent. Williams, 228 Ill. 2d at 417.
¶ 8 On a motion for summary judgment, the trial court has "a duty to construe the record strictly against the movant and liberally in favor of the nonmoving party." Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423-24 (1998). As a result, summary judgment is not appropriate: (1) if "there is a dispute as to a material fact," (Jackson, 185 Ill. 2d at 424); (2) if "reasonable persons could draw divergent inferences from undisputed material facts" (Jackson, 185 Ill. 2d at 424), or (3) if "reasonable persons could differ on the weight to be given the relevant factors" of a legal standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 269 (2007)). We review a grant of summary judgment de novo. Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456 (2003); Pritza v. Village of Lansing, 405 Ill. App. 3d 634, 641 (2010). De novo consideration means we perform the same analysis that a trial judge would perform and give no deference to the judge's conclusions or specific rationale. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 9 The sole issue in this case is whether the defendant had a duty to use due care. Our analysis begins with a review of sections 343 and 343A of the Restatement (Second) of Torts which has been adopted by Illinois and is part of the analysis of a "fall down" accident. Section 343 provides:
"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect ...