2012 IL App (1st) 100759
Ill. App. Ct.2012Background
- Waters injured August 22, 2005, on Milwaukee Ave at Higgins Ave when she tripped over a metal base of a street barricade on the sidewalk.
- Barricades had metal bases sticking out; bases were in a crosswalk/ingress area of a construction site.
- Jackhammer noise from nearby construction startled Waters, causing her to misstep and fall.
- Circuit court granted summary judgment finding the barricade condition open and obvious and no distraction duty.
- Appellate court reversed, holding there are factual questions on open/obviousness and the distraction duty; duty may arise under distraction exception.
- Case proceeded on appeal from Cook County Circuit Court, 06-L-7932; presiding judge was Eileen M. Brewer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the barricade condition was open and obvious as a matter of law | Waters argues the issue is factual for trial | City argues the condition was open and obvious and no duty exists | Not dispositive; the court held the issue improper for summary judgment but addressed duty nonetheless |
| Whether the distraction exception applies to create a duty | Waters argues distraction from jackhammer could impose duty | City contends distraction exception does not apply here | Distraction exception could apply; summary judgment improper; duty found under circumstances |
| Whether the City owed a duty of care under the Restatement 343/343A framework | Waters contends duty exists given distraction risk | City contends no duty due to open/obvious condition | Court found City owed a duty under the circumstances; summary judgment reversed and remanded |
Key Cases Cited
- Ward v. K mart Corp., 136 Ill. 2d 132 (1990) (open and obvious danger; focus is on foreseeability of injury to invitee)
- Rexroad v. City of Springfield, 207 Ill. 2d 33 (2003) (reasonably foreseeable injuries from open/obvious conditions; barricades could have guarded against injury)
- Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430 (1990) (distraction principle; plaintiff attention distracted by construction context; foreseeability of harm)
- Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435 (1996) (open and obvious rule; exception considerations considered in duty)
- Jackson v. TLC Associates, Inc., 185 Ill. 2d 418 (1998) (duty analysis framework for open/obvious conditions; four-factor test)