Garcia v. Young
948 N.E.2d 1050
Ill. App. Ct.2011Background
- Garcias sue Jack Young for injuries from pothole on private Young Street, a private drive owned by Young.
- Steven resided on Young Street; alleges Young had a duty to keep the road reasonably safe.
- Pothole allegedly open and obvious; plaintiffs alleged failure to repair, mark, secure, or warn.
- Injury occurred when Steven entered the road to help his stepson; pothole about 2 feet in diameter, 8 inches deep.
- June 15, 2010 Young moved for summary judgment; argued open and obvious and no applicable exceptions; trial court granted summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty when open and obvious applies? | Garcia: exceptions apply; duty to warn | Young: open and obvious; no duty | No duty; open and obvious; delib. encounter/distraction not proven |
| Distraction exception applicable? | Garcia: distraction foreseeability exists | Young: no distraction created by owner | Distraction exception not applicable; no duty to warn or protect |
Key Cases Cited
- Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill.App.3d 249 (2010) (duty factors for open and obvious; four-factor test)
- Sollami v. Eaton, 201 Ill.2d 1 (2002) (distraction and deliberate encounter exceptions to open and obvious)
- Clifford v. Wharton Business Group, L.L.C., 353 Ill.App.3d 34 (2004) (distraction; open and obvious foreseeability not required for general rule)
- Sandoval v. City of Chicago, 357 Ill.App.3d 1023 (2005) (distraction exception requires landowner-created or contributed distraction)