Appeal from the Circuit Court of Marion County. No. 12-L-21 Honorable Michael D. McHaney, Judge, presiding.
Attorney for Appellant
Daniel R. Price, Wham & Wham.
Attorney for Appellee Brian M. Funk, O'Halloran, Kosoff, Geitner & Cook, LLC,
JUSTICE CATES delivered the judgment of the court, with opinion. Justices Welch and Stewart concurred in the judgment and opinion.
¶ 1 Plaintiff, Virginia Bruns, sought damages from defendant, the City of Centralia (City), for personal injuries sustained after tripping over a raised section of a public sidewalk. The circuit court of Marion County granted the City's motion for summary judgment after determining that the City owed no duty to plaintiff. Plaintiff appeals the grant of summary judgment in favor of the City. We reverse and remand.
¶ 2 On March 27, 2012, plaintiff intended to enter the Centralia Eye Clinic (Clinic) (now doing business as Eyecare Management, LLC) for a scheduled appointment. On that date, the weather was clear, and nobody else was walking on the sidewalk in front of the Clinic. As plaintiff approached the Clinic, she tripped over a raised section of sidewalk that was part of the path used to access the front entrance to the Clinic. A large tree stands adjacent to the sidewalk, and over time, its root system caused a concrete section of the sidewalk to crack and heave, creating an uneven pathway. At the time of plaintiff's fall, the cracked sidewalk was raised some three inches above the adjacent concrete slabs and grass. The Clinic had previously contacted the City to report the defective condition, and at one point, even offered to have the tree removed at the Clinic's expense. In fact, at least a year prior to plaintiff's fall, the Clinic had reported that another person had tripped as a result of the raised sidewalk. Despite knowledge of the dangerous condition of the sidewalk, the City's tree committee considered the tree to have historic significance and refused removal.
¶ 3 At the time of her fall, plaintiff was 80 years old and had been a patient of the Clinic since December of 2011. She was being treated for various eye problems, including irritation, pain in her eyes, and blurry and reduced vision. During past visits, plaintiff parked on the street and routinely walked along the same sidewalk on her way to the entrance of the Clinic. Each time, she had noticed the sidewalk defect and considered it to be "an accident waiting to happen." At the time of her fall, plaintiff was not looking down at the sidewalk. Instead, she was looking toward the Clinic door and steps where she was intending to enter. Because her attention was fixed on the Clinic's entrance, she did not notice the crack in the sidewalk. She stubbed her right foot on the crack and fell. In trying to catch herself, she severely injured her shoulder and arm.
¶ 4 The public works foreman for the City testified that the sidewalk was a danger to pedestrians and was hazardous at the time of plaintiff's fall. He also recognized that not all pedestrians look down all of the time as they are walking. He also acknowledged the duty of a city, in general, to use reasonable care to keep its sidewalks in good repair, and further acknowledged that if the City were aware of the condition of this particular sidewalk, it was unacceptable for the City not to have remedied the defect.
¶ 5 The court determined that the sidewalk defect at issue here was open and obvious as a matter of law and that the distraction exception was inapplicable under the circumstances presented. Specifically, the court stated that "the mere existence of an entrance, and/or steps leading up to it, would provide a universal distraction exception to the open and obvious doctrine. Such an expansion of Illinois negligence law must only come from the legislature or a higher court." Accordingly, the court entered summary judgment in favor the City.
¶ 6 Summary judgment is appropriate when the pleadings, affidavits, depositions, and admissions on file, viewed in the light most favorable to the nonmoving party, reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012); see also Sollami v. Eaton, 201 Ill.2d 1, 6, 772 N.E.2d 215, 218 (2002). Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. Harris v. Old Kent Bank, 315 Ill.App.3d 894, 899, 735 N.E.2d 758, 762 (2000). The purpose of summary judgment is not to try a question of fact, but, rather, to determine if one exists. Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill.App.3d 249, 255, 942 N.E.2d 640, 646 (2010). In determining whether genuine issues of material fact exist, we view the factual record in the light most favorable to the nonmoving party. United National Insurance Co. v. Faure Brothers Corp., 409 Ill.App.3d 711, 716, 949 N.E.2d 1185, 1190 (2011). Moreover, summary judgment should not be granted if it is possible to draw more than one reasonable inference from undisputed facts. Buchaklian v. Lake County Family Young Men's Christian Ass'n, 314 Ill.App.3d 195, 199, 732 N.E.2d 596, 599 (2000). Summary judgment should not be granted unless the moving party's right to a judgment is "clear and free from doubt." (Internal quotation marks omitted.) Buchaklian, 314 Ill.App.3d at 199, 732 N.E.2d at 598-99. Our review of a trial court's grant of summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 607 N.E.2d 1204, 1209 (1992); Morietta v. Reese Construction Co., 347 Ill.App.3d 1077, 1080, 808 N.E.2d 1046, 1049 (2004).
¶ 7 Plaintiff argues on appeal that the City owed her a duty of reasonable care as to the condition of its sidewalk. Everyone agrees that the crack in the sidewalk at issue here was open and obvious as a matter of law. Plaintiff contends, however, that such a fact is only the beginning of determining whether there existed a legal duty.
¶ 8 The essential elements of a cause of action based on common law negligence are the existence of a duty owed by the defendant to the plaintiff, breach of that duty, and an injury proximately caused by that breach. Ward v. K mart Corp., 136 Ill.2d 132, 140, 554 N.E.2d 223, 226 (1990). Whether a defendant owes a plaintiff a duty of care is usually a question of law to be decided by the court. Ward, 136 Ill.2d at 140, 554 N.E.2d at 226. In making this determination, the court should consider the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden on the defendant of guarding against the injury, and the consequences of placing the burden on the defendant. Clifford v. Wharton Business Group, L.L.C., 353 Ill.App.3d 34, 40, 817 N.E.2d 1207, 1213 (2004).
¶ 9 In general, a party that owns, controls, or maintains property has a duty to maintain the premises in a reasonably safe condition. Ward, 136 Ill.2d at 141, 554 N.E.2d at 227. Any dangerous condition, therefore, must be removed or corrected, or a warning to invitees who might encounter the danger must be provided. Ward, 136 Ill.2d at 141-42, 554 N.E.2d at 227. However, a property owner is generally under no obligation to guard against injury from open and obvious dangers. Ward, 136 Ill.2d at 142, 554 N.E.2d at 227. Open and obvious conditions are conditions and risks which are apparent to and would be recognized by reasonable people exercising ordinary perception, intelligence, and judgment in visiting the area. Sandoval v. City of Chicago, 357 Ill.App.3d 1023, 1028, 830 N.E.2d 722, 727 (2005). Property owners are not expected to foresee an injury from an open and obvious danger (Bucheleres v. Chicago Park District, 171 Ill.2d 435, ...