[Copyrighted Material Omitted]
Appellate court judgment reversed. Circuit court judgment affirmed.
Where a city had refused to remove a tree whose roots were causing a crack in the concrete strip between a street and the main sidewalk, and where a plaintiff who knew about the crack slipped and fell there, the " distraction exception" to the rule of no duty to remedy open and obvious defects was not available where she argued only that she was, instead, focusing on the entrance to the building which she was approaching from her parked car.
Brian M. Funk, of O'Halloran Kosoff Geitner & Cook, LLC, of Northbrook, for appellant.
Daniel R. Price, of Wham & Wham Attorneys, of Centralia, for appellee.
Brian Day and Roger Huebner, of Springfield, for amicus curiae Illinois Municipal League.
Laura K. Beasley, of Joley, Oliver & Beasley, P.C., of Belleville, for amicus curiae Illinois Association of Defense Trial Counsel.
JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.
[¶1] Plaintiff, Virginia Bruns, filed a negligence action in Marion County against defendant, the City of Centralia (City), after she tripped and fell on an uneven sidewalk, sustaining personal injuries. The City moved for summary judgment, arguing that the defect was " open and obvious," and the City was under no duty to protect plaintiff from the defective sidewalk. Plaintiff argued that the " distraction exception" to the open and obvious rule applied, and the City owed her a duty of reasonable care. The trial court granted the City's motion for summary judgment. The appellate court reversed and remanded for further proceedings. 2013 IL App. (5th) 130094, 996 N.E.2d 321, 374 Ill.Dec. 874.
[¶2] For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the trial court.
[¶4] The following facts are not in dispute. On March 27, 2012, plaintiff, then just a few days away from her eightieth birthday, drove to an eye clinic located on 2nd Street in Centralia for a scheduled appointment. Plaintiff did not use the clinic's parking lot. Instead, she parked her car on 2nd Street in front of the clinic, just as she had on each of her nine visits to the clinic during the preceding three months. As she walked toward the clinic, plaintiff stubbed her toe on a crack in the sidewalk, causing her to fall and injure her arm, leg and knee. At the time of the fall, plaintiff was looking " towards the door and the steps" of the clinic. Plaintiff " definitely" noticed the defect in the sidewalk every time she went to the clinic, and was sure she noticed it on March 27. According to plaintiff, " you couldn't help but not [ sic ] notice it."
[¶5] The defect at issue, which developed over a period of several years, was on the stretch of sidewalk that runs from the street to the main sidewalk in front of the clinic. Roots from a nearby tree caused the sidewalk to crack and become uneven. Sometime prior to 2009, a clinic employee had contacted the City about the defect, and offered to remove the tree at the clinic's expense. The City would not authorize removal because of the 100-year-old tree's historic significance. In 2009, a clinic employee again contacted the City after learning that someone had tripped and fallen on the sidewalk.
[¶6] In her complaint, plaintiff alleged that the City negligently maintained the sidewalk, failed to inspect and repair the sidewalk, and permitted the sidewalk to remain in a dangerous condition. The City filed a motion for summary judgment, arguing that the nature of the defect was not in dispute, and that the defect was open and obvious as a matter of law. The City maintained that it was not required to foresee and protect against injuries from a potentially dangerous condition that was open and obvious.
[¶7] Plaintiff countered that merely labelling the sidewalk defect " open and obvious" would not necessarily bar recovery because the City should have reasonably foreseen that a pedestrian, like plaintiff, could become distracted and fail to protect herself against the dangerous condition. The nature of the distraction on which ...