Ballog v. City of Chicago
980 N.E.2d 690
Ill. App. Ct.2012Background
- Ballog injured Aug. 17, 2008 when she tripped on an unfilled street gap at Leavitt St and Belle Plaine Ave in Chicago, after perceiving ongoing construction but before resurfacing; the gap was not covered or obscured and she fell landing near the sidewalk; she had previously traversed the same crosswalk on the opposite side safely; she walked this route regularly and was familiar with construction at the intersection; City moved for summary judgment arguing open and obvious condition and no duty; plaintiff sought to defeat on open and obvious and deliberate encounter theories; court held open and obvious as a matter of law and deliberate encounter not proven; summary judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Open and obvious condition, is it legal question or fact? | Ballog contends factual dispute exists on openness/obviousness. | City contends gap was open/obvious as a matter of law. | Open and obvious as a matter of law. |
| Deliberate encounter exception applicability? | Plaintiff alleges crosswalk use made encounter deliberate. | No deliberate encounter; no evidence plaintiff compelled to encounter. | Deliberate encounter not applicable. |
| Duty and open/obvious doctrine interplay for sidewalks/streets? | Open/obvious doesn't bar duty if specific circumstances exist. | Open/obvious eliminates duty unless deliberate encounter. | No duty due to open/obvious condition; no exception applied. |
Key Cases Cited
- Ward v. K mart Corp., 136 Ill. 2d 132 (1990) (duty and open/obvious analysis for land conditions)
- Prostran v. City of Chicago, 349 Ill. App. 3d 81 (2004) (open/obvious depends on reasonable perception; visual impairment not dispositive)
- Bonner v. City of Chicago, 334 Ill. App. 3d 481 (2002) (open/obvious conditions and landowner duty)
- Nickon v. City of Princeton, 376 Ill. App. 3d 1095 (2007) (jury question where condition disputed by photographs/circumstances)
- Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38 (2002) (open/obvious issue generally fact; limited by Choate (supreme court reaffirmation))
- Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948 (2012) (open/obvious question resolved as legal when no dispute about physical nature)
- Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044 (2010) (deliberate encounter not shown where no distraction/encounter)
- LaFever v. Kemlite Co., 185 Ill. 2d 380 (1998) (deliberate encounter framework adopted)
- Sandoval v. City of Chicago, 357 Ill. App. 3d 1023 (2005) (open/obvious sidewalk defect - objective risk acknowledged)