Appeal from the Circuit Court of Cook County. No. 08 L 12290 Honorable Mary Mulhern,Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
JUSTICE GARCIA delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.
¶ 1 Plaintiff Eleanor Ballog appeals from the circuit court's grant of summary judgment to defendant City of Chicago (the City) in her suit charging the City with negligence. The plaintiff fractured her foot when she tripped as she stepped from the portion of the street that had been excavated, refilled with concrete, but not resurfaced. We append two photographs of the location, identified as "Plaintiff's Exhibit #1" and "Plaintiff's Exhibit #5." The plaintiff marked plaintiff's Exhibit No. 5 to show where she landed on the connecting sidewalk when she fell. The plaintiff contends summary judgment was precluded because two material questions of fact remain: (1) whether the condition that caused the plaintiff to fall was an open and obvious condition; and (2) whether the deliberate encounter exception to the open and obvious doctrine applied. We hold the condition of the street was open and obvious as a matter of law where the parties do not dispute the physical nature of the condition and the exception did not apply where no deliberate encounter occurred. We affirm.
¶ 3 On August 17, 2008, the plaintiff was injured in a fall at the intersection of North Leavitt Street and West Belle Plaine Avenue in Chicago. At her deposition on November 13, 2009, the plaintiff testified that at 11:15 a.m., she left her residence to walk five blocks to attend church services. She identified several photographs that depicted the intersection where she fell. Asked to describe how she fell, the plaintiff stated that she did not see the gap in the street as she crossed Belle Plaine Avenue in the crosswalk, as she walked southbound on Leavitt. She was "admiring" the construction that had been completed at the intersection, which had been ongoing for six months. During the construction, she had observed warning signs on the streets. When she walked to church while the streets were under construction, she would "walk in the middle of the street" instead of using the crosswalk at the intersection. She could not recall if she had walked to church the week before the incident and could not recall the last time she was in the area prior to her fall. The plaintiff always walked the same route to attend church. She stated that she was familiar with the area and traveled in that location "[e]very week, or every two weeks" for years.
¶ 4 On the date the plaintiff fell, it was a beautiful, dry August
day. The plaintiff testified, "There [were] no signs saying there was
construction still, nothing. As I was walking, I had
canvas shoes on, lightweight. It was summer." She
continued, "There was nothing to say that anything was wrong with the
streets. My foot went on the edge of the - - that was up, twisted, I
fell to my knees, and couldn't remember the rest because I woke up and
I was in a lady's arms." When asked whether anything distracted her
immediately prior to her fall, the plaintiff answered, "The niceness
of the streets, the clean up." Before she fell she "was looking
towards the church," that was "[a]head of [her]." She stated that she
did not see the unfilled portion of the street until she fell. When
asked what caused her to fall, the plaintiff responded, "the street
wasn't finished. The construction was not done." The plaintiff was
asked, "[B]efore the accident, if you were looking down, were you able
to see [the gap in the street]?" The plaintiff answered, "From
crossing, no. You just thought to yourself it's done. Look how
beautiful. That was it." The plaintiff fractured her right foot in the
¶ 5 After the plaintiff fell, she observed the unfilled portion of the street. The plaintiff made clear that the gap where she tripped was not covered or obscured by leaves, debris, or anything else. According to the plaintiff, she could not see the gap as she entered the intersection because the elevated center of the street obscured her view of the other side. A photograph of the intersection depicted in plaintiff's Exhibit No. 1 reveals that in addition to the gap that caused her fall, a similar gap in the surface of the street existed at the corner from where the plaintiff began her walk across Belle Plaine Avenue.
¶ 6 The plaintiff marked where she landed after she fell on plaintiff's Exhibit No. 5, a photograph of the intersection. The gap abutted the beginning of the sidewalk and ran some unspecified, but short distance into the street. Neither party provided the dimensions of the gap from the end of the surface covering of the street to the start of the sidewalk. Plaintiff's Exhibit No. 5 depicts a plainly visible elevation where the concrete of the sidewalk abuts the street. The plaintiff did not measure the height of the elevation from the gap to the concrete of the sidewalk that is visible on plaintiff's Exhibit No. 5.
¶ 7 Karin Meyers testified at her deposition on January 28, 2011, that on August 17, 2008, she was walking with her boyfriend to the grocery store and passed the plaintiff on the sidewalk as they walked in the same direction on Leavitt. "[A]nd then once we were halfway down the block after that intersection, we heard her fall." Meyers did not see the plaintiff fall, but as soon as she heard her fall, she "knew exactly what had happened 'cause I almost tripped at the same thing crossing that intersection." According to Meyers, at that same intersection, "I didn't fall, but I had taken a little, you know, stumble at this same exact spot." When asked to describe how she stumbled, Meyers responded, "I think it was the edge of the road and then not getting my foot up for the edge of the curb in time, and so the tripping on the edge of the curb there in that ditch that's between the street and the sidewalk." Meyers described the "ditch" as a "nonfilled-in area between the street and the sidewalk." Meyers did not see the gap until after she stumbled on it. She did not recall seeing any warning signs or barriers at the intersection on the date of the incident. However, the area was not covered or obscured by any debris.
¶ 8 After she heard the plaintiff fall, Meyers returned to the intersection to assist the plaintiff. According to Meyers, the plaintiff indicated she had fallen because of the "problem with the - -you know, not being filled in right between the street and the curb." The City's attorney asked Meyers if she could recall the height difference between the downward slope of the sidewalk at the curb and the gap. Meyers responded, "I doubt it was more than two inches, but maybe around two inches. The problem is that it dips down and then - - you've got this unexpected dip down even if it's not very deep and then an unexpected dip up or step up that's just a few feet - - you know, just like a foot later, and so if you're walking in a normal distance between your feet, one of those is going to get tripped up either going in or going out." She stated that it was difficult to see the gap when approaching from the opposite side of the street. Meyers identified the gap in the street in a photograph of the intersection: "I can see it looking at the photograph." However, she did not see the gap as she crossed the street because she was "expecting it to be like a normal street meeting the curb, so I was looking just up and about at, you know, trees or my boyfriend or whatever." Meyers did not know how long the gap was there prior to the plaintiff's fall. Meyers stated, "I mean it hadn't been there always. I have the sense that maybe it had been there for just a short time, maybe a week or something, I don't know because I hadn't been there - - I don't think it had been there the previous time that I walked down there which was probably, you know, a couple of weeks beforehand."
¶ 9 On April 26, 2011, the City moved for summary judgment, arguing that the unfilled portion of the street was an open and obvious condition that did not give rise to a duty of care owed by the City to the plaintiff. The City contended the photographs and the plaintiff's testimony showed the gap was "clearly visible and any pedestrian walking along that portion of the crosswalk can see that part of the crosswalk was taken out." The City asserted that the open and obvious condition was not unreasonably dangerous; nor was it reasonable to require the City to anticipate that a pedestrian, in the exercise of ordinary care, would not have taken the precautions necessary to safely traverse the area. In other words, a reasonable person in the plaintiff's position would have seen the condition and appreciated the risk of walking over it.
¶ 10 In her response, the plaintiff argued that "a genuine issue of fact exists as to whether the excavated gap in the street was an open and obvious condition." According to the plaintiff, the deposition testimony established that neither she nor Meyers could see the gap in the crosswalk when walking toward it from the opposite side of the street. The plaintiff asserted the City should have placed warning signs or barriers at the crosswalk to notify pedestrians that construction was incomplete. The plaintiff contended that, even assuming the gap was an open and obvious condition, the deliberate encounter exception applied because the City should reasonably expect that pedestrians would utilize the crosswalk.
¶ 11 In its reply, the City raised its immunity under the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/3-104 (West 2010)) as to any contention that it should have placed warnings or barricades at the intersection. The City argued in its reply that section 3-104 of the Act immunizes the City " 'against all liability arising from its failure to initially provide a traffic control device, even where such failure might endanger safety' " (quoting Bonner v. City of Chicago, 334 Ill. App. 3d 481, 487 (2002)). The City contested the plaintiff's claim that the deliberate encounter exception applied when no evidence was adduced that the plaintiff suffered from an economic compulsion to encounter the ...