Rehearing denied October 23, 2013
The entry of summary judgment for defendant city was reversed in an action for the injuries plaintiff suffered when she tripped and fell on a raised section of a public sidewalk while going to an eye clinic, since the record showed that the roots of a nearby tree caused the sidewalk to crack and heave, another person had tripped at the same location, the clinic had reported the condition to the city and offered to remove the tree, the city’s tree committee refused the clinic’s offer due to the historic significance of the tree, and even though the danger was open and obvious, it was reasonably foreseeable that a patron of the clinic might be distracted while walking to the clinic, and under the circumstances, the question of whether the city breached its duty of reasonable care should have been left for the jury.
Appeal from the Circuit Court of Marion County, No. 12-L-21; the Hon. Michael D. McHaney, Judge, presiding.
Daniel R. Price, of Wham & Wham, of Centralia, for appellant.
Brian M. Funk, of O’Halloran, Kosoff, Geitner & Cook, LLC, of Northbrook, for appellee.
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 alsoSollami 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." ...