Peters v. R. Carlson & Sons, Inc.
70 N.E.3d 196
Ill. App. Ct.2017Background
- Plaintiff Daniel Peters sued R. Carlson & Sons, Inc. (Carlson) and property owner Graham Enterprises after he fell into an excavated hole in the parkway next to a sidewalk adjacent to a gas-station construction site and sustained serious injuries.
- Defendants admitted ownership (Graham) and that Carlson was constructing the gas station; they denied negligence and asserted contributory negligence.
- At deposition Peters stated he walked the sidewalk daily, knew the parkway was under construction with rocks, dirt, and holes, testified the area was ‘‘dangerous’’ and that he would not normally walk in the parkway.
- On the accident day he heard skidding tires behind him, turned to look while walking, stepped off the sidewalk into the parkway and fell; the braking noise was not attributed to defendants.
- Defendants moved for summary judgment, arguing the parkway condition was open and obvious and the distraction exception was inapplicable because the distraction was not foreseeable or caused by defendants.
- The trial court granted summary judgment for defendants; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the parkway condition was open and obvious | Peters: condition may not be open and obvious; fact question exists | Carlson: condition (rocks, dirt, holes) was open and obvious as a matter of law | Court: open and obvious as a matter of law based on plaintiff's deposition admissions |
| Whether the distraction exception applies | Peters: distraction (skidding tires) was foreseeable; exception does not require defendant-caused distraction | Carlson: exception applies only when distraction is attributable to defendant; here distraction not caused by defendants | Court: distraction was commonplace and not foreseeable here; exception inapplicable as a matter of law |
| Whether any genuine issue of material fact precluded summary judgment | Peters: factual disputes over openness/visibility and lighting | Carlson: plaintiff’s own testimony establishes openness and visibility; no dispute creating an issue for trial | Court: no genuine dispute; summary judgment proper |
| Whether defendants had duty given open and obvious condition | Peters: duty may still exist in some circumstances; question for jury | Carlson: open and obvious condition negates duty | Court: open and obvious nature and lack of foreseeable distraction weigh against imposing a duty; summary judgment affirmed |
Key Cases Cited
- Bruns v. City of Centralia, 2014 IL 116998 (Illinois 2014) (explains duty analysis and open-and-obvious rule)
- Seymour v. Collins, 2015 IL 118432 (Illinois 2015) (summary judgment standards; when open-and-obvious is a question of law)
- Valfer v. Evanston Northwestern Healthcare, 2016 IL 119220 (Illinois 2016) (plaintiff must present factual basis beyond speculation to survive summary judgment)
- Sollami v. Eaton, 201 Ill. 2d 1 (Ill. 2002) (distraction exception to open-and-obvious rule)
- Midwest Builder Distributing, Inc. v. Lord & Essex, Inc., 383 Ill. App. 3d 645 (Ill. App. Ct. 2007) (review of summary judgment on record materials)