The opinion of the court was delivered by: Magistrate Judge Young B. Kim
MEMORANDUM OPINION and ORDER
In this diversity suit brought pursuant to Illinois law, Brian Savage claims that Ritchie Bros. Auctioneers, Inc. ("Ritchie") is liable under a negligence theory for injuries Savage sustained when he tripped and fell over a piece of wooden cribbing while browsing in Ritchie's auction lot. After the parties consented to this court's jurisdiction, (R. 20), Ritchie filed the current motion for summary judgment, arguing that it had no duty to foresee or prevent Savage's injuries because the cribbing was an open and obvious hazard. For the following reasons, Ritchie's motion is denied.
The following facts are undisputed and are viewed in the light most favorable to Savage as the non-moving party. See Hannemann v. Southern Door County Sch. Dist., 673 F.3d 746, 751 (7th Cir. 2012). On March 13, 2009, Ritchie held an auction of commercial equipment at its auction site in Morris, Illinois ("Morris site"). (R. 48, Def.'s Facts ¶ 7.) Before the auction began, potential customers were given maps of the auction site and allowed to view and operate the equipment, which was spaced about four to five feet apart in aisles throughout the site. (Id. ¶¶ 14-16.) Ritchie used what is called cribbing-a 4x4 or 2x4 board-to prevent some of its equipment from rolling. (R. 51, Pl.'s Facts ¶ 6.) The yard manager for the Morris site, Bobby Tennison, testified that his job was to oversee the yard operations and to make sure the yard was clean of debris. (Id. ¶¶ 4, 11.) Tennison expected his employees to move any misplaced cribbing back to a flagged-off area where customers were not allowed. (Id. ¶¶ 15-16.)
Savage attended Ritchie's March 13, 2009 auction at the Morris site with Kenneth Strezo. (R. 48, Def.'s Facts ¶ 11.) About 20 minutes after they arrived, as Savage was walking east in an aisle between pieces of equipment, he tripped and fell over a piece of wood cribbing protruding 18 inches from the rear tire of a boom lift. (Id. ¶¶ 18, 20, Ex. E, Srezo Dep. at 14 ln. 3 - 15 ln. 19.) Strezo, who was walking about two steps ahead of Savage at the time of the fall, noticed the wood cribbing when he was about eight to ten feet away and avoided it when he walked by. (Id. ¶¶ 19, 21-22, 27.) Savage is amnesic of the event and has no recollection of anything that happened on the auction site on March 13, 2009. (Id. ¶ 9.) His only knowledge of what occurred is based upon what Strezo told him. (Id. ¶ 10.)
Although the facts set forth above are undisputed, the parties take slightly differing views of Strezo's deposition testimony describing where Savage was directing his attention at the moment of his fall. Strezo testified to the following:
[Savage] had his hands in his pockets and he tripped over the wood. And he was-it looked like he was trying to look through-if I could-the way the boom on the machine was it was like this and he was kind of looking down around to see if he could see anything to the north. And when I turned around to let him know there was nothing over there he tripped over the wood and fell face first. He couldn't get his hands out of his pocket fast enough and when he came down he whacked the front side of his head probably just above his temple, ear. He turned his head when he went down and he rolled straight forward and fell.
(R. 48, Def.'s Facts Ex. E, Strezo Dep. at 17 ln. 15 - 18 ln. 5.) Under examination by Ritchie's attorney, Strezo further described the scene of Savage's fall as follows:
[T]he boom is probably off the machine is probably somewhere in the neighborhood of like six feet up in the air and then the basket is on the end of it. So once you pass the main part of the machine you can actually see underneath the boom and at that angle would have been able to look all the way to the north. So he looked like he was probably looking under, you know, and obviously not paying attention, you know, he just kind of glanced down. (Id. at 48 lns. 3-12.) He clarified that Savage was "lurking downward" to look under the boom when he fell. (Id. at 48 lns. 17-22.) According to Ritchie, Strezo's testimony demonstrates that Savage fell because he was not paying attention. (R. 48, Def.'s Facts ¶¶ 24-25.) According to Savage, Strezo's testimony demonstrates that he was looking north under the boom portion of the lift and paying attention to the equipment to his left and north of the boom lift when he fell. (R. 51, Pl.'s Facts ¶¶ 24-25.)
Summary judgment is appropriate when the record establishes that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether genuine issues of material fact exist, the court must "review the record in the light most favorable to the nonmoving party and . . . draw all reasonable inferences in that party's favor." Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th Cir. 1998). A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (emphasis omitted), or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
"In order to prevail in an action for negligence, the plaintiff must prove that the defendant owed a duty, that defendant breached that duty, and the defendant's breach was the proximate cause of the injury to the plaintiff." American Nat. Bank & Trust Co. of Chicago v. National Adver. Co., 149 Ill. 2d 14, 25 (1992). The current motion boils down to the parties' differing takes on whether Ritchie owed Savage a duty in the specific context of the facts surrounding his fall.*fn1 Richie argues that it did not owe Savage any duty because the cribbing that caused his fall was an "open and obvious" hazard. Savage counters that the distraction exception to the open-and-obvious doctrine applies here and preserves Ritchie's duty to have foreseen and taken steps to prevent his fall.
Whether a duty exists is a question of law for the court to decide, and is determined by four factors: (1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the defendant's burden in guarding against the injury; and (4) the consequences of placing the burden on the defendant. Sollami v. Eaton, 201 Ill. 2d 1, 17 (2002). With respect to the foreseeability and likelihood of injury prongs, the court takes into account what is objectively reasonable for the defendant to expect rather than what might conceivably occur. American Nat. Bank, 149 Ill. 2d at 29. "Illinois law holds that persons who own, occupy, or control and maintain land" generally do not have a duty "to foresee and protect against injuries from potentially dangerous conditions that are open and obvious." Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435, 447-48 (1996). A danger is open and obvious only when both the condition and the risk of injury are evident to and "would be appreciated by a reasonable person in the plaintiff's position exercising ordinary perception, intelligence, and judgment." Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43 (1st Dist. 2002). The doctrine accommodates the idea that when a condition is open and obvious, the likelihood of injury is small because a person should appreciate and avoid the risk. Bucheleres, 171 Ill. 2d at 448. It also acknowledges that because people generally appreciate the risks associated with open and obvious conditions, a landowner is unlikely to predict that the risk could cause an injury. Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14, 17 (1st Dist. 2010).
Where, as here, there is no dispute about the physical nature of the condition, the open and obvious nature of the condition is a question of law for the court to decide. See Alqadhi, 405 Ill. App. 3d at 17. The parties agree that the relevant condition was a piece of wood cribbing protruding 12 to 18 inches from the back of the rear tire to a boom lift that could be perceived from 8 to 10 feet away. (R. 48, Def.'s Facts ¶¶ 20, 22.) Because there is no dispute regarding ...