specially concurring:
I agree with the majority’s disposition of the case, but write separately to clarify the issue concerning an open and obvious danger.
The question of whether a particular landowner owed a duty of care to a particular invitee under a theory of premises liability is a question of law. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (1998). However, when a court cannot conclude as a matter of law that a condition posed an open and obvious danger, then “the obviousness of the danger is for the jury to determine.” Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1044 (1994); Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43 (2002) (“Whether a condition presents an open and obvious danger is a question of fact”), cited by Sollami v. Eaton, 201 Ill. 2d 1, 20 (2002) (Harrison, C.J., dissenting) (“Whether a condition presents an open and obvious danger is a question of fact for the trier of fact”); Buchaklian v. Lake County Family Young Men’s Christian Ass’n, 314 Ill. App. 3d 195, 203 (2000) (“summary judgment is not proper when reasonable minds could differ as to whether a condition was open and obviousE;] *** such a determination involves a finding of fact”).
In Duffy v. Togher, 382 Ill. App. 3d 1 (2008), we found that when a 21-year-old plaintiff dove into an in-ground swimming pool located in the backyard of a single-family home and sustained serious injuries, the question of an open and obvious danger was a jury question. In that case, an expert testified that there was an optical illusion that the pool had both a shallow and a deep end, and from the physical design of the pool, it was not an open and obvious danger, which supported plaintiffs observations. In the case at bar, as the majority ably points out, plaintiffs expert testified that plaintiff was unable to appreciate the change in elevation from the parking lot and curb when the lighting conditions were “low” and “dark,” and that the lack of contrast created the “illusion” of walking on a flat surface, which also supported plaintiff’s observations. In Duffy and this case, expert testimony aided the plaintiffs theory of liability in creating a factual issue for the trier of fact.