2012 IL App (1st) 100759
Ill. App. Ct.2012Background
- On August 22, 2005, Norma Waters was injured at Milwaukee and Higgins Avenues in Chicago.
- Waters walked along the Milwaukee sidewalk, crossed to the west side, and returned toward Higgins.
- At a crosswalk, street barricades with metal bases extended into the crossway, with bases sticking out.
- Waters tripped over the base of the third barricade after being startled by a loud jackhammer nearby.
- She sustained a wrist injury requiring surgery; the incident occurred in a construction zone on a public sidewalk.
- The circuit court granted summary judgment to the City, ruling the condition was open and obvious and the distraction exception did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the barricade condition was open and obvious | Waters contends this is a fact question for trial. | City argues the condition was open and obvious as a matter of law. | Open/obvious issue not solely a question of fact; duty exists nonetheless |
| Whether the distraction exception applies to the jackhammer noise | Waters argues distraction foreseeable; fact issue for trial. | City argues distraction exception does not apply here. | Distraction exception applicable; not dispositive; genuine fact issues remain |
| Whether the City owed a duty of care under the circumstances | Waters asserts a duty to exercise reasonable care given barricades and distraction potential. | City contends no duty due to open/obvious condition and lack of foreseeable distraction. | Court finds duty existed; summary judgment improper; remand |
Key Cases Cited
- Ward v. K mart Corp., 136 Ill.2d 132 (1990) (open-and-obvious danger; foreseeability governs duty)
- Deibert v. Bauer Bros. Construction Co., 141 Ill.2d 432 (1999) (distraction-based liability in 'fall down' cases)
- Rexroad v. City of Springfield, 207 Ill.2d 33 (2003) (distraction foreseeability near open/obvious dangers)
- Prostran v. City of Chicago, 349 Ill.App.3d 81 (2004) (distinction between failing to warn and negligently creating danger)
- Santelli v. City of Chicago, 222 Ill.App.3d 862 (1991) (negligence for failure to remove dangerous condition; distinction on action taken)
- Bucheleres v. Chicago Park Dist., 171 Ill.2d 435 (1996) (open and obvious conditions; cautionary limits on foreseeability)