2016 IL App (1st) 153539
THIRD DIVISION
December 21, 2016
No. 1-15-3539
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
DANIEL PETERS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
R. CARLSON & SONS, INC. and GRAHAM
ENTERPRISES, INC., )
) No. 15 L 5151
Defendants )
)
(R. Carlson & Sons, Inc., Defendant-Appellee). ) Honorable
) William E. Gomolinski,
) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff Daniel Peters appeals from an order of the circuit court granting summary
judgment for defendant R. Carlson & Sons, Inc. (Carlson) and codefendant Graham Enterprises,
Inc. (Graham) in plaintiffs’ personal injury action. Plaintiff contends on appeal that the court erred
in granting summary judgment. For the reasons stated below, we affirm.
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¶2 In his May 2015 complaint, plaintiff raised a claim of negligence against Carlson (count I)
and claims of negligence, negligent hiring, and negligent supervision against Graham. He alleged
that on and before December 15, 2012, Carlson was constructing a gasoline station on land owned
by Graham at 2250 South Arlington Heights Road in Arlington Heights (the premises). On that
date, plaintiff was walking on a sidewalk near the intersection of Arlington Heights Road and
Algonquin Road when he “suddenly and without warning fell violently into a hole, sustaining
serious injuries.” He alleged that Carlson controlled the premises where his fall occurred and thus
owed a duty to exercise ordinary care in maintaining and securing the premises so that they would
be reasonably safe for persons lawfully thereon. He alleged that Carlson breached this duty by
negligently and carelessly (1) “causing a hole to be excavated next to the sidewalk at the location
described,” (2) “failing to inspect the premise[s] such as to discover a hazardous condition near the
sidewalk, (3) “failing to place warning devices or otherwise demarcate the hole *** so as to warn
pedestrians of its existence,” and (4) “failing to repair said hole.” He alleged that Carlson created a
hole where it knew or should have known that pedestrians would be traveling and thus presented
an unreasonably dangerous and hazardous condition to pedestrians including plaintiff. He alleged
multiple physical and mental injuries incurring medical bills in excess of $100,000 and that
Carlson’s negligence proximately caused said injuries.
¶3 The negligence count against Graham (count II) alleged the same acts of negligence and
that Graham knew or should have known about the unreasonably dangerous and hazardous
condition to pedestrians created by the hole. The negligent hiring count (count III) alleged that
Graham had a duty of reasonable care in hiring a competent contractor and knew or should have
known that Carlson was unfit as a contractor. The negligent supervision count (count IV) alleged
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that Graham had a duty of reasonable care in supervising Carlson but breached that duty by
inadequately supervising Carlson.
¶4 Carlson and Graham appeared and answered jointly. Graham admitted to owning the
premises and Carlson admitted to constructing a gasoline station thereon on the alleged date, but
defendants denied the substantive allegations of negligence, causation, and injury.
¶5 Defendants raised an affirmative defense of contributory negligence. 735 ILCS 5/2-1116
(West 2014). They alleged that plaintiff had a duty of reasonable care for his own safety that he
breached by negligently (1) failing to keep a proper lookout while walking on the sidewalk on or
about the premises and traversing a known construction site, (2) failing to appreciate and avoid the
open and obvious conditions described in his complaint, (3) voluntarily walking through an open
construction site where he knew or should have known he would encounter dangerous and
hazardous conditions such as holes, and (4) trespassing on the premises. They alleged that
plaintiff’s negligence was more than half of the proximate cause of his injuries and should bar
recovery and alternatively that his damages should be reduced proportionately to his share of
proximate causation.
¶6 Plaintiff answered the affirmative defense, admitting that he had a duty of reasonable care
towards himself but denying all allegations of his negligence and denying that his damages should
be barred or reduced by contributory negligence.
¶7 Defendants filed a motion for summary judgment. They alleged that plaintiff was walking
on the sidewalk next to the premises “when he heard skidding tires and turned to look behind him.
Turning caused [him] to step off of the sidewalk into a parkway under construction where he fell.
Plaintiff admitted at deposition that the parkway was an open and obvious condition.” Defendants
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argued that they had no duty to protect plaintiff from this open and obvious condition. They also
argued that plaintiff’s assertion of the distraction exception, whereby a landowner should expect
that an invitee may be distracted and thus either not discover or forget the open and obvious
condition, is inapposite because it applies only where a defendant created or contributed to the
distraction, while defendants were not responsible for the distraction here. Defendants supported
their allegations with citations to plaintiff’s deposition, which was attached to the motion. Plaintiff
testified to walking past the premises daily and being aware that the premises were under
construction including excavation that brought rocks, dirt, and holes to the parkway. He testified to
walking on the sidewalk at about 5:15 a.m. on the day in question until he heard a loud sound like
skidding tires, turned to look behind him while continuing to walk, and stepped off the sidewalk
into the rocks and dirt of the parkway where he fell into a hole. He testified that he could see where
he was walking and would not have walked off the sidewalk but for hearing the noise behind him.
¶8 Plaintiff responded to the summary judgment motion. In describing his deposition
testimony, he added to defendants’ description that there was no fence or barricade to prevent
falling off the sidewalk into the excavated parkway and that the area was “not too well lit,” though
he could see where he was going. Plaintiff argued that the hazardous condition of the parkway was
at least arguably not open and obvious so that it was a question of fact whether it was an open and
obvious hazard. He noted that the conditions here were not the generally accepted instances of
open and obvious hazards such as fire, heights, and bodies of water, and that not all visible alleged
hazards are open and obvious hazards. Plaintiff alternatively argued that the distraction exception
to the open and obvious rule applied, in that it was reasonably foreseeable that a pedestrian on the
sidewalk may be distracted by a runaway vehicle or another pedestrian, bicyclist, or skater on the
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sidewalk. Plaintiff disagreed that the law required a defendant to have caused or contributed to the
distraction for the exception to apply, but merely required that distraction be foreseeable. He
argued that merely because many of the cases on the distraction exception involved distractions
attributable to a defendant did not make such causation essential to the exception.
¶9 Defendants replied in support of their summary judgment motion, arguing that plaintiff’s
deposition testimony made it clear that the condition of the parkway was openly and obviously
hazardous so that its openness and obviousness was not an issue in genuine factual dispute.
Defendants maintained that the distraction exception is inapplicable as a matter of law.
¶ 10 On November 18, 2015, following arguments of the parties, the court granted summary
judgment for defendants. Plaintiff’s timely notice of appeal named only Carlson as appellee, and
only Carlson has appeared in this court and filed an appellee’s brief.
¶ 11 Before proceeding to the merits of appeal, we note that there is no transcript or other record
(Ill. S. Ct. R. 323 (eff. Dec. 13, 2005)) of the hearing on the summary judgment motion. However,
as our review of a grant of summary judgment is de novo and based on the motion pleadings and
supporting discovery, as stated below, we find the record adequate for our review. See Midwest
Builder Distributing, Inc. v. Lord & Essex, Inc., 383 Ill. App. 3d 645, 655 (2007).
¶ 12 On appeal, plaintiff contends that the court erred in granting summary judgment, in that
there are genuine factual disputes as to whether (1) the condition of the parkway of the premises
was an open and obvious hazard and (2) the distraction exception to the open and obvious doctrine
applies. Carlson contends that the court did not err in finding the condition of the parkway to be
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openly and obviously hazardous as a matter of law and that the distraction exception is
inapplicable as a matter of law. 1
¶ 13 A defendant may move for a summary judgment in its favor, which “shall be rendered
without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” 735 ILCS 5/2-1005(b), (c) (West 2014). A genuine issue of
material fact precluding summary judgment exists when the material facts are disputed, reasonable
persons may draw different inferences from the undisputed facts, or reasonable persons can differ
on the weight to be given the relevant factors of a legal standard. Seymour v. Collins, 2015 IL
118432, ¶ 42. Because summary judgment is a drastic means of disposing of litigation, the
pleadings and supporting documentation are construed strictly against the movant and liberally in
favor of the opponent, and summary judgment should be granted only when the movant’s right is
clear and free from doubt. Id. That said, a plaintiff opposing a summary judgment motion must
present some factual basis—not mere speculation or conjecture—supporting his claim. Valfer v.
Evanston Northwestern Healthcare, 2016 IL 119220, ¶ 20. Our review of a grant of summary
judgment is de novo. Id. ¶ 19; Seymour, 2015 IL 118432, ¶ 42.
¶ 14 In a negligence action, a plaintiff must allege facts establishing the existence of a legal duty
owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by
1
Carlson also contends that plaintiff was a trespasser on the parkway, to whom defendants owed no
duty of ordinary care. However, while defendants’ affirmative defense alleged plaintiff’s trespass
as an instance of his contributory negligence, they did not argue trespass as one of the grounds for
summary judgment. An issue not raised in a summary judgment motion cannot be raised on appeal
from its disposition. Cabrera v. ESI Consultants, Ltd., 2015 IL App (1st) 140933, ¶ 106.
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that breach. Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. A legal duty concerns a relationship
between the defendant and the plaintiff such that the law imposes on the defendant an obligation of
reasonable conduct for the benefit of the plaintiff. Id. ¶ 14. The factors used to determine whether
a duty exists are the (1) reasonable foreseeability of injury, (2) likelihood of injury, (3) magnitude
of the burden of guarding against the injury, and (4) consequences of placing the burden upon the
defendant. Id. Absent a legal duty, recovery by the plaintiff is impossible as a matter of law, so that
the existence of a duty under particular circumstances is a question of law. Id. ¶ 13.
¶ 15 The open and obvious rule provides that, generally, a party who owns or controls land is
not required to foresee and protect against an injury if the potentially dangerous condition is open
and obvious. Id. ¶ 16. A “ ‘possessor of land is not liable to his invitees for physical harm caused to
them by any activity or condition on the land whose danger is known or obvious to them.’ ” Id.
(quoting Restatement (Second) of Torts § 343A, at 218 (1965)). More fully:
“(1) A possessor of land is not liable to his invitees for physical harm caused to
them by any activity or condition on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or
obvious danger, the fact that the invitee is entitled to make use of public land, or of the
facilities of a public utility, is a factor of importance indicating that the harm should be
anticipated.” Restatement (Second) of Torts § 343A, at 218 (1965).
“Known” for this purpose means “not only knowledge of the existence of the condition or activity
itself, but also appreciation of the danger it involves. Thus the condition or activity must not only
be known to exist, but it must also be recognized that it is dangerous, and the probability and
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gravity of the threatened harm must be appreciated.” Restatement (Second) of Torts § 343A cmt.
b, at 219 (1965). “Obvious” means that the condition and risk are apparent to, and would be
recognized by, a reasonable person in the position of the visitor and exercising ordinary
perception, intelligence, and judgment. Bruns, 2014 IL 116998, ¶ 16 (citing Restatement (Second)
of Torts § 343A cmt. b, at 219 (1965)).
¶ 16 The open and obvious rule is not confined to such familiar conditions as fire, height, and
bodies of water. Id. ¶ 17. Whether a dangerous condition is open and obvious may present a
question of fact, but it is a question of law whether the dangerous condition is open and obvious
when no dispute exists as to the physical nature of the condition. Id. ¶ 18. Similarly, the existence
of an open and obvious danger is not a per se bar to finding that a defendant has a legal duty, but
the foreseeability of harm and likelihood of injury will be slight, which weighs against imposing a
duty. Id. ¶ 19.
¶ 17 The distraction exception to the open and obvious rule applies “where the possessor [of
land] has reason to expect that the invitee’s attention may be distracted, so that he will not discover
what is obvious, or will forget what he has discovered, or fail to protect himself against it.”
(Internal quotation marks omitted.) Id. ¶ 20 (quoting Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002),
quoting Restatement (Second) of Torts § 343A cmt. F, at 220 (1965)). A distraction is a
circumstance, reasonably foreseeable by a defendant, that requires a plaintiff to divert his attention
from the open and obvious danger or otherwise prevents him from avoiding the risk. Id. ¶¶ 28-29.
Distractions created wholly by the plaintiff himself are not reasonably foreseeable. Id. ¶ 31.
¶ 18 Courts will find a distraction foreseeable only if there are special circumstances, of which a
reasonable landowner would be aware, that would cause persons to be distracted at the site of the
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plaintiff’s incident in particular. Negron v. City of Chicago, 2016 IL App (1st) 143432, ¶ 18.
Landowners are not required to guard against a distraction that is commonplace and could occur
anywhere. Id. ¶ 19. While a defendant’s contribution to the distraction is not essential or elemental
to the distraction exception, it is highly relevant to foreseeability: a defendant who contributes to a
distraction typically has reason to know it exists, while courts frequently find that a defendant
could not reasonably have foreseen a distraction it did not contribute to. Id. ¶ 20.
¶ 19 Here, we find that the court did not err in finding the condition of the parkway of the
premises to be an open and obvious hazard as a matter of law. Plaintiff testified that the lighting
near where he fell was not very good but also testified that the lighting was sufficient to see where
he was going. He testified to being aware of the condition of the parkway, including rocks, dirt,
and holes. Moreover, he testified that he always walked by the premises on the sidewalk and would
not walk in the parkway of the premises because of its condition. He testified that “[a]nybody
could tell that” the parkway was under construction, agreed with characterization of the parkway
condition as “dangerous,” and he characterized walking across the parkway of the premises in that
condition as “stupid to do.” In sum, his testimony shows both knowledge of the existence of the
condition of the parkway and appreciation of the danger it presented.
¶ 20 This brings us to the distraction exception to the open and obvious doctrine. It is
undisputed for purposes of summary judgment that plaintiff walked off the sidewalk into the
parkway where he was allegedly injured only because the sound of skidding brakes behind him
caused him to look back while he continued walking. It is also not in dispute that there is no
evidence attributing this noise in whole or in part to defendants. The issue before us is thus a legal
one, the scope of the distraction exception as to foreseeable distractions. Plaintiff argues that
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reasonably foreseeable distractions fall under the exception while Carlson argues that only
distractions at least partially attributable to a defendant suffice. As stated above, the distraction
exception applies to distractions foreseeable in special circumstances that would cause persons to
be distracted at the site of the plaintiff’s incident, not commonplace distractions that could occur
anywhere. We consider plaintiff’s distraction, a braking sound behind him as he walked along a
street, commonplace and not a special circumstance. Moreover, while not by itself decisive, it
weighs heavily against foreseeability that there is no evidence or allegation that defendants
contributed to plaintiff’s distraction. We find the distraction exception inapplicable as a matter of
law. We conclude that the trial court did not err in granting summary judgment for defendants,
including appellee Carlson.
¶ 21 Accordingly, the judgment of the circuit court is affirmed.
¶ 22 Affirmed.
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