2015 IL App (4th) 141067
Ill. App. Ct.2015Background
- On Nov. 3, 2009, Leslie Wade walked through a well-lit Wal-Mart parking lot in Savoy, IL, returned with groceries, then "trotted" back to her SUV and stepped into a pothole a few inches deep and a couple feet long, fracturing her foot. Video of the lot was available.
- Wade admitted she did not look down and acknowledged she could have avoided the hole if she had been looking where she was going.
- Wade sued Wal‑Mart in Nov. 2011 for negligence; Wal‑Mart moved for summary judgment in Sept. 2014 arguing the pothole was an open and obvious hazard and the distraction exception did not apply.
- The trial court granted summary judgment for Wal‑Mart; Wade appealed.
- The appellate court reviewed de novo, found the pothole was objectively open and obvious under the undisputed record (lighting, size, and video), and held the distraction exception did not apply because Wade was not engaged in a foreseeable, owner‑caused distraction (e.g., carrying a bulky, vision‑obscuring item).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the pothole an open and obvious hazard? | The pothole was subtle, low‑contrast, and not readily discernible; factual dispute exists about visibility. | The pothole was a couple feet long and a few inches deep in a well‑lit lot; a reasonable person would have seen and avoided it. | Held: Open and obvious as a matter of law based on undisputed evidence (including video). |
| Does plaintiff's subjective failure to look down create an issue of fact on obviousness? | Wade argues uncertainty whether she would've seen it if looking down creates factual dispute. | Defendant: Obviousness is objective; plaintiff's subjective knowledge is irrelevant. | Held: Objective standard controls; plaintiff's subjective lack of observation does not create a factual issue. |
| Does the distraction exception to the open and obvious doctrine apply? | Wade contends it was foreseeable she would be distracted (watching for cars, carts, pedestrians) while returning to her car. | Wal‑Mart argues no reasonably foreseeable, owner‑caused distraction existed; plaintiff offered no evidence she was actually distracted by a foreseeable condition. | Held: Exception does not apply; no evidence of a foreseeable, owner‑attributable distraction (e.g., carrying a bulky item). |
| Was summary judgment appropriate? | Wade: factual disputes preclude summary judgment. | Wal‑Mart: no genuine issue of material fact; entitled to judgment as a matter of law. | Held: Summary judgment affirmed for Wal‑Mart. |
Key Cases Cited
- Ward v. K mart Corp., 136 Ill. 2d 132 (1990) (articulates distraction exception where owner should foresee customers carrying vision‑obscuring items)
- American Nat’l Bank & Trust Co. of Chicago v. Nat’l Advertising Co., 149 Ill. 2d 14 (1992) (evidence that entrants were unaware of a hazard can create factual issue on obviousness)
- Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14 (2010) (visibility, lighting, and surface contrast can make obviousness a question for the jury)
- Buchaklian v. Lake County Family Young Men’s Christian Ass’n, 314 Ill. App. 3d 195 (2000) (small size and lack of contrast can support inference that defect was not readily discoverable)
- Bruns v. City of Centralia, 2014 IL 116998 (2014) (no duty exists absent evidence from which a duty may be inferred; distraction exception requires proof plaintiff was actually distracted)