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Peters v. R. Carlson & Sons, Inc.

Court of Appeals of Illinois, First District, Third Division

December 21, 2016

DANIEL PETERS, Plaintiff-Appellant,
R. CARLSON & SONS, INC. and GRAHAM ENTERPRISES, INC., Defendants R. Carlson & Sons, Inc., Defendant-Appellee.

         Appeal from the Circuit Court of Cook County. No. 15 L 5151 Honorable William E. Gomolinski, Judge Presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.


          LAVIN, JUSTICE

         ¶ 1 Plaintiff Daniel Peters appeals from an order of the circuit court granting summary judgment for defendant R. Carlson & Sons, Inc. (Carlson) and codefendant Graham Enterprises, Inc. (Graham) in plaintiffs' personal injury action. Plaintiff contends on appeal that the court erred in granting summary judgment. For the reasons stated below, we affirm.

         ¶ 2 In his May 2015 complaint, plaintiff raised a claim of negligence against Carlson (count I) and claims of negligence, negligent hiring, and negligent supervision against Graham. He alleged that on and before December 15, 2012, Carlson was constructing a gasoline station on land owned by Graham at 2250 South Arlington Heights Road in Arlington Heights (the premises). On that date, plaintiff was walking on a sidewalk near the intersection of Arlington Heights Road and Algonquin Road when he "suddenly and without warning fell violently into a hole, sustaining serious injuries." He alleged that Carlson controlled the premises where his fall occurred and thus owed a duty to exercise ordinary care in maintaining and securing the premises so that they would be reasonably safe for persons lawfully thereon. He alleged that Carlson breached this duty by negligently and carelessly (1) "causing a hole to be excavated next to the sidewalk at the location described, " (2) "failing to inspect the premise[s] such as to discover a hazardous condition near the sidewalk, (3) "failing to place warning devices or otherwise demarcate the hole *** so as to warn pedestrians of its existence, " and (4) "failing to repair said hole." He alleged that Carlson created a hole where it knew or should have known that pedestrians would be traveling and thus presented an unreasonably dangerous and hazardous condition to pedestrians including plaintiff. He alleged multiple physical and mental injuries incurring medical bills in excess of $100, 000 and that Carlson's negligence proximately caused said injuries.

         ¶ 3 The negligence count against Graham (count II) alleged the same acts of negligence and that Graham knew or should have known about the unreasonably dangerous and hazardous condition to pedestrians created by the hole. The negligent hiring count (count III) alleged that Graham had a duty of reasonable care in hiring a competent contractor and knew or should have known that Carlson was unfit as a contractor. The negligent supervision count (count IV) alleged that Graham had a duty of reasonable care in supervising Carlson but breached that duty by inadequately supervising Carlson.

         ¶ 4 Carlson and Graham appeared and answered jointly. Graham admitted to owning the premises and Carlson admitted to constructing a gasoline station thereon on the alleged date, but defendants denied the substantive allegations of negligence, causation, and injury.

         ¶ 5 Defendants raised an affirmative defense of contributory negligence. 735 ILCS 5/2-1116 (West 2014). They alleged that plaintiff had a duty of reasonable care for his own safety that he breached by negligently (1) failing to keep a proper lookout while walking on the sidewalk on or about the premises and traversing a known construction site, (2) failing to appreciate and avoid the open and obvious conditions described in his complaint, (3) voluntarily walking through an open construction site where he knew or should have known he would encounter dangerous and hazardous conditions such as holes, and (4) trespassing on the premises. They alleged that plaintiff's negligence was more than half of the proximate cause of his injuries and should bar recovery and alternatively that his damages should be reduced proportionately to his share of proximate causation.

         ¶ 6 Plaintiff answered the affirmative defense, admitting that he had a duty of reasonable care towards himself but denying all allegations of his negligence and denying that his damages should be barred or reduced by contributory negligence.

         ¶ 7 Defendants filed a motion for summary judgment. They alleged that plaintiff was walking on the sidewalk next to the premises "when he heard skidding tires and turned to look behind him. Turning caused [him] to step off of the sidewalk into a parkway under construction where he fell. Plaintiff admitted at deposition that the parkway was an open and obvious condition." Defendants argued that they had no duty to protect plaintiff from this open and obvious condition. They also argued that plaintiff's assertion of the distraction exception, whereby a landowner should expect that an invitee may be distracted and thus either not discover or forget the open and obvious condition, is inapposite because it applies only where a defendant created or contributed to the distraction, while defendants were not responsible for the distraction here. Defendants supported their allegations with citations to plaintiff's deposition, which was attached to the motion. Plaintiff testified to walking past the premises daily and being aware that the premises were under construction including excavation that brought rocks, dirt, and holes to the parkway. He testified to walking on the sidewalk at about 5:15 a.m. on the day in question until he heard a loud sound like skidding tires, turned to look behind him while continuing to walk, and stepped off the sidewalk into the rocks and dirt of the parkway where he fell into a hole. He testified that he could see where he was walking and would not have walked off the sidewalk but for hearing the noise behind him.

         ¶ 8 Plaintiff responded to the summary judgment motion. In describing his deposition testimony, he added to defendants' description that there was no fence or barricade to prevent falling off the sidewalk into the excavated parkway and that the area was "not too well lit, " though he could see where he was going. Plaintiff argued that the hazardous condition of the parkway was at least arguably not open and obvious so that it was a question of fact whether it was an open and obvious hazard. He noted that the conditions here were not the generally accepted instances of open and obvious hazards such as fire, heights, and bodies of water, and that not all visible alleged hazards are open and obvious hazards. Plaintiff alternatively argued that the distraction exception to the open and obvious rule applied, in that it was reasonably foreseeable that a pedestrian on the sidewalk may be distracted by a runaway vehicle or another pedestrian, bicyclist, or skater on the sidewalk. Plaintiff disagreed that the law required a defendant to have caused or contributed to the distraction for the exception to apply, but merely required that distraction be foreseeable. He argued that merely because many of the cases on the distraction exception involved distractions attributable to a defendant did not make such causation essential to the exception.

         ¶ 9 Defendants replied in support of their summary judgment motion, arguing that plaintiff's deposition testimony made it clear that the condition of the parkway was openly and obviously hazardous so that its openness and obviousness was not an issue in genuine factual dispute. Defendants maintained that the distraction exception is inapplicable as a matter of law.

         ¶ 10 On November 18, 2015, following arguments of the parties, the court granted summary judgment for defendants. Plaintiff's timely notice of appeal named only Carlson as appellee, and only Carlson has appeared in this court and filed an appellee's brief.

         ¶ 11 Before proceeding to the merits of appeal, we note that there is no transcript or other record (Ill. S.Ct. R. 323 (eff. Dec. 13, 2005)) of the hearing on the summary judgment motion. However, as our review of a grant of summary judgment is de novo and based on the motion pleadings and supporting discovery, as stated below, we find the record adequate for our ...

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