Filed 3/4/10 NO. 4-09-0707
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
AMANDA HOPE, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
JAMES HOPE and KAREN HOPE, ) No. 07L253
Defendants-Appellees. )
) Honorable
) Leslie J. Graves,
) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In November 2006, plaintiff, Amanda Hope, fell on the
steps of her parents’ home and was injured. In October 2007,
Amanda filed a one-count premises-liability complaint against
defendants, James Hope and Karen Hope.
James and Karen moved for summary judgment, arguing the
mud on the steps was open and obvious and also arguing Amanda was
unable to establish a required element for a premises-liability
claim, i.e., lack of knowledge of the alleged defect. In August
2009, the trial court granted the motion for summary judgment.
Amanda appeals, arguing that summary judgment was
inappropriate because the distraction exception applies.
We disagree and affirm.
I. BACKGROUND
Plaintiff, Amanda Hope, is the young adult daughter of
defendants, James Hope and Karen Hope. In November 2006, Amanda
went to her parents’ home in Springfield for a visit. James and
Karen own the home. Amanda arrived at approximately 10 a.m.
Karen was gardening in the yard when Amanda arrived. The yard
had no grass. Karen had been gardening since approximately 8 or
8:30 a.m. James had left the house for work at 7:30 a.m.
Four concrete steps lead from the sidewalk up to the
front porch of the house. Each time Karen took a break from
gardening she wiped mud from her shoes on these concrete steps.
Hereinafter, for the purpose of clarity, the steps will be
referred to in numerical order where step one is the bottom step
and step four is the top step. Greeting Amanda in the yard,
Karen warned Amanda of the mud on the steps. Amanda testified
that she saw mud on step one, and Amanda then entered the house
by climbing the steps without incident.
While Amanda was in the house, Karen continued to do
her gardening. During her breaks, Karen wiped more mud on the
steps. When step one was laden with mud, Karen wiped mud from
her shoes on step two. After mud accumulated on step two, Karen
wiped some mud on step three. Mud covered approximately one-
third the width of the steps, starting from the handrail side.
When looking up the steps, the handrail is on the left side.
Amanda did homework, watched television, ate, and slept while
Karen continued to work in the yard.
At some point later in the day, Karen’s friend Paul
Smarjesse visited the house. Paul told Karen that she should
clean the steps before someone got hurt. Amanda testified she
heard Paul give this warning to Karen. Karen testified she
forgot to clean the steps.
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When James returned to the house from work at
approximately 5:15 or 5:30 p.m., he saw mud on step one and step
two. Karen was still working in the yard when James arrived.
James told Karen that she should clean the steps before someone
slipped and fell. Karen told James she would clean the steps.
James believes Karen cleaned the steps but then later wiped mud
on them again.
Somewhere between 6 p.m. and 7 p.m., Amanda, James,
Karen, and some guests were in the process of leaving the house
to go play in a dart tournament. James Robertson, a friend of
the family who lived at the house, went down the steps first.
Amanda went down the steps next and fell as she did so. Amanda
was holding onto the handrail when she fell. Her arm got twisted
during the fall. Amanda had mud on her back after the fall.
Amanda believes she lost her footing on step three. James
testified he believes Amanda lost her footing on step two. After
the fall, James cleaned the steps himself. When doing the
cleaning, James did not recall seeing any mud on step three.
James did recall seeing mud on step one and step two.
Amanda complained of shoulder and arm pain. Amanda
went to the hospital that night. Amanda later received treatment
from a chiropractor. Amanda gave a statement to an insurance
company that she was talking and not paying attention when she
was walking down the steps. She also told the insurance company
she forgot there was mud on the steps.
In October 2007, Amanda filed a one-count premises-
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liability complaint against James and Karen. James and Karen
moved for summary judgment, arguing the mud on the steps was open
and obvious and also arguing Amanda was unable to establish the
third element for premises liability. In August 2009, the trial
court granted the motion for summary judgment. The August 2009
order does not mention the basis on which the motion was granted.
This appeal followed.
II. ANALYSIS
We review the grant of summary judgment de novo. Smith
v. Neumann, 289 Ill. App. 3d 1056, 1063, 682 N.E.2d 1245, 1249
(1997).
Plaintiff argues summary judgment was inappropriate
because defendants were not relieved of the duty of reasonable
care owed to plaintiff because defendants should have anticipated
that the mud-covered steps would cause physical harm to plaintiff
notwithstanding the known or obvious danger. Plaintiff further
argues genuine issues of material fact remain as to whether
plaintiff knew of mud on the "top steps" and whether plaintiff
remembered mud on any steps at all at the time of her fall.
Plaintiff does not argue the muddy steps were not open and
obvious.
To recover in a premises-liability case, a plaintiff
must prove the following elements:
(1) A condition on the property presented an
unreasonable risk of harm to people on the property;
(2) The defendant knew or in the exercise of
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ordinary care should have known of both the condition
and the risk;
(3) The defendant could reasonably expect that
people on the property would not discover or realize
the danger or would fail to protect themselves against
such danger;
(4) The defendant was negligent in one or more
ways;
(5) The plaintiff was injured; and
(6) The defendant’s negligence was a proximate
cause of the plaintiff’s injury.
See Simich v. Edgewater Beach Apartments Corp., 368 Ill. App. 3d
394, 408, 857 N.E.2d 934, 945 (2006), quoting Illinois Pattern
Jury Instructions, Civil, No 120.08 (2005).
In general, landowners have no duty regarding open and
obvious dangers. Bucheleres v. Chicago Park District, 171 Ill.
2d 435, 447-48, 665 N.E.2d 826, 832 (1996). An exception to this
rule lies if the property owner has "reason to expect that the
invitee’s attention may be distracted, so that he will not dis-
cover what is obvious, or will forget what he has discovered or
will fail to protect himself against it." Rexroad v. City of
Springfield, 207 Ill. 2d 33, 45, 796 N.E.2d 1040, 1046 (2003).
Plaintiff’s entire argument relies on this distraction
exception: plaintiff failed to discover mud on the "top steps"
and plaintiff forgot about mud on any steps due to being
distracted.
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Defendants argue (1) plaintiff cannot establish the
third element (listed above) for a premises-liability claim and
(2) the distraction exception is inapplicable to the facts of
this case.
Defendants contend because the danger was open and
obvious, and because plaintiff was warned about mud on the steps
by both Karen and Paul, defendants could not reasonably expect
plaintiff would not discover or realize the danger or would fail
to protect herself against the danger. Thus, defendants argue
plaintiff fails to establish the third element for premises
liability, which states the defendant could reasonably expect
people on the property would not discover or realize the danger
or would fail to protect themselves against such danger. Simich,
368 Ill. App. 3d at 408, 857 N.E.2d 934 at 945.
Defendants also argue the distraction exception does
not apply because no sworn testimony in the record suggests
plaintiff was distracted. Defendants acknowledge plaintiff said
she forgot mud was on the steps in her statement to an insurance
company; however, defendants point out this statement is not
sworn testimony. Defendants also contend that far from being
distracted and failing to protect herself, plaintiff was holding
onto the handrail while walking down the steps.
The trial court did not provide its reasoning in the
summary-judgment order. "[W]e review the trial court’s judgment,
not its reasoning, and we may affirm on any basis called for by
the record." Forsberg v. Edward Hospital & Health Services, 389
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Ill. App. 3d 434, 440, 906 N.E.2d 729, 734 (2009).
We agree with defendants the distraction exception is
not applicable in this case. Plaintiff asserts she was
distracted by the common, everyday activities of eating, study-
ing, watching television, and sleeping. Plaintiff has made no
argument as to how defendants would have reason to expect these
ordinary activities by plaintiff would have distracted her to the
point plaintiff would not discover obvious danger, would forget
the muddy condition of the steps, or would fail to protect her-
self as required for the distraction exception to be applicable
(see Rexroad, 207 Ill. 2d at 45, 796 N.E.2d at 1046), particu-
larly where she was warned of the danger by two different people
and observed the mud on the steps herself.
The issue is not whether plaintiff was distracted. The
issue is whether defendants would have reason to expect plaintiff
would be distracted. "Generally a party need not anticipate the
negligence of others." Ward v. K mart Corp., 136 Ill. 2d 132,
152, 554 N.E.2d 223, 232 (1990).
Defendants would not reasonably foresee that eating,
studying, watching television, and sleeping would create a dis-
traction leading to injury. If such mundane activities, under-
taken at a different location than the place of injury, were
sufficient to invoke the distraction exception, then the distrac-
tion exception would almost completely subsume the open-and-
obvious doctrine.
In contrast, the distraction cases relied upon by
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plaintiff both involve distractions occurring at the time and
place of injury. In Rexroad, a boy stepped in a hole while
running an urgent errand. Rexroad, 207 Ill. 2d at 37, 796 N.E.2d
at 1042. In Ward, a customer collided with a concrete post,
located near the store entrance, while carrying a large purchase
that obstructed his view. Ward, 136 Ill. 2d at 135, 554 N.E.2d
at 224. In the instant case, plaintiff was not eating, studying,
watching television, or sleeping at the time she fell on the
steps.
III. CONCLUSION
For the reasons stated, we affirm the trial court’s
judgment.
Affirmed.
MYERSCOUGH, P.J., and KNECHT, J., concur.
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