2017 IL App (1st) 161177
No. 1-16-1177
First Division
December 18, 2017
MAGDALENA ROZOWICZ, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
) Cook County.
v. )
)
)
C3 PRESENTS, LLC; CAPITAL SPORTS & )
ENTERTAINMENT, LLC; CAPITAL SPORTS & )
ENTERTAINMENT HOLDINGS, INC.; CARING & )
DARING, LLC; PARKWAYS FOUNDATION; )
SECURITY SAFETY SERVICES, INC., d/b/a S3, )
Inc.; TROY E. OFFICER, d/b/a TE Officer Consulting; ) No. 2013 L 5947
)
NPB COMPANIES, INC.; MONTERREY SECURITY
)
CONSULTANTS, INC., d/b/a Monterrey Security; )
CHRISTIE LITES FLORIDA LLC, d/b/a Christie )
Lites; SPACE LIGHTING OF TEXAS, INC., d/b/a ) Honorable James N. O’Hara,
Airstar Lighting of Texas, ) Judge presiding.
Defendants )
)
(C3 Presents, LLC, Defendant-Appellee). )
JUSTICE SIMON delivered the judgment of the court, with opinion.
Justices Harris and Connors concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Magdalena Rozowicz, filed a negligence action against defendant C3 Presents,
LLC (C3), stemming from a slip and fall injury she suffered at the 2011 Lollapalooza music
festival at Grant Park in Chicago. The circuit court granted summary judgment in favor of C3.
No. 1-16-1177
On appeal, plaintiff argues genuine issues of material fact preclude summary judgment in favor
of C3. 1 For the following reasons, we affirm.
¶2 In 2008, C3 contracted with the Chicago Park District to lease Grant Park for the purpose
of holding the annual Lollapalooza music festival, to be held on August 5, 2011, through August
7, 2011. The lease provided, inter alia, that C3 was responsible to “take all actions necessary to
ensure the safety of Festival attendees.”
¶3 In 2011, plaintiff filed a first-amended complaint asserting two counts of negligence
against C3. She sought damages for injuries she suffered as a result of slipping and falling while
trying to exit the Lollapalooza concert grounds. Plaintiff alleged various failures by C3
including, inter alia, failure to properly illuminate concert grounds and exits, place mats over
slippery areas of the concert grounds and exits, manage the concert crowd, provide safe egress
from the concert grounds, and cancel the music festival.
¶4 C3 moved for summary judgment, arguing it did not owe plaintiff a duty of care where
she slipped on mud, the mud did not present an unreasonable risk of harm, C3 did not have
notice of an allegedly dangerous condition, and the mud was an open and obvious condition.
1
Plaintiff’s 15-count first amended complaint asserted negligence claims against 11 defendants,
including C3. The trial court granted summary judgment to C3 on December 15, 2015. Plaintiff filed her
appeal from this order on April 28, 2016, more than 30 days after entry of the order. Plaintiff asserted the
appeal was timely as the court granted summary judgment to the final remaining defendant on March 30,
2016. But our jurisdiction was not ascertainable from the record on appeal, as it did not reflect final
decisions as to all the defendants. We ordered supplemental briefing on the issue of appellate jurisdiction
and, having viewed the parties’ briefs and submissions, including the relevant trial court orders, are
satisfied with our jurisdiction. Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 37 (a
reviewing court may take judicial notice of a written decision that is part of another court’s record
because these decisions are readily verifiable facts capable of instant and unquestionable demonstration).
We note that, on plaintiff’s motion, the trial court ordered that the record on appeal be limited to
(1) plaintiff’s first amended complaint, (2) C3’s motion for summary judgment with accompanying
exhibits, (3) plaintiff’s response to C3’s motion for summary judgment with accompanying exhibits, (4)
C3’s reply in support of its motion for summary judgment with accompanying exhibits, and (5) the trial
court’s order granting summary judgment to C3.
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Plaintiff responded that C3 owed her a duty of care to protect her from hazardous conditions on
the concert grounds and to provide a safe means of egress from the venue. She asserted her
injury was foreseeable as C3 created an unreasonable risk of harm when it forced her to exit the
grounds uphill, through overcrowded, poorly lit, and tree-filled terrain; the dangerous condition
of which was exacerbated by the mud. The parties supported their positions with depositions and
exhibits.
¶5 Plaintiff testified in her deposition that, on August 7, 2011, around 12:00 p.m., she
arrived at the Lollapalooza festival with friends Angelica and Sylvia Dziadowiec. Plaintiff was at
the festival for seven to eight hours. Sometime between 8 and 9 p.m., after the sun had gone
down, Rozowicz and her two friends began to walk in a southwesterly direction from the Butler
Field area toward an exit. She walked shoulder to shoulder with the crowd to the exit, following
the crowd because, although she could not see an exit, she “knew” one was in that direction.
Plaintiff observed, with respect to the concert grounds, that “[i]t was raining for many hours. It
was mud everywhere. It was slippery.” It had been difficult to walk around between the stages
because of the mud and lighting. The mud was very deep as she walked west, and she saw people
fall “everywhere” around her due to the mud. Plaintiff took a few steps up a hill and her right
foot slipped on the mud. She fell and could not stand. Her ankle was broken, and she later had
surgery to repair it.
¶6 Plaintiff testified that it was muddy, dark, and crowded as she walked to the exit but
nothing “other than the mud” caused her to fall. She knew it was muddy and slippery and was
looking down at her feet when she slipped. Before plaintiff fell, she was being bumped by people
in the exiting crowd, it was dark, she could not see the sidewalks, and did not know whether she
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was walking on grass or concrete. She tried to walk cautiously and was distracted by the loud
music, but no one pushed her and nothing other than the mud caused her to fall. She was wearing
flip-flops when she fell.
¶7 Sylvia Dziadowiec testified in her deposition that, while exiting the festival, she heard
plaintiff call out her name and noticed that she had fallen. When plaintiff could not get up, Sylvia
went to get help. Before plaintiff fell, Sylvia observed 20 people slip and fall throughout the day
because of the mud and rain. She testified that she, plaintiff, and Angelica did not take an
alternate route to the exit because turning back against the crowd would seem “unnatural” and
dangerous. They were walking slowly and carefully because of the three- to four-inch deep mud.
They had been “slipping” on the mud throughout the day. She testified that she never saw a
staircase near where plaintiff fell.
¶8 Dirk Stalnecker, C3’s production director for the 2011 Lollapalooza festival, testified in
his deposition that he was responsible for layout and coordination of festivals. C3 was
responsible for determining entrances and exits for the festival. Stalnecker testified that there was
a set of illuminated concrete steps located in the western area of Butler Field, near where
plaintiff alleged she fell, that would lead to a concrete pathway and to the north exit of the venue.
He marked this lit area on a map of Butler Field at his deposition. He also marked the tree-lined
area where plaintiff fell as an intended exit from the concert grounds. He explained the area was
“[n]ot specifically an exit” but, rather, was a landscaped area free of obstruction or fencing “to
allow people to walk through.”
¶9 The trial court granted summary judgment in C3’s favor relying on the Restatement
(Second) of Torts, section 343. Restatement (Second) of Torts § 343 (1965). It found plaintiff’s
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deposition showed “only the mud” caused her to fall and the mud did not give rise to a duty from
C3 to plaintiff. It found that there was nothing unreasonably dangerous about the existence of
mud at an outdoor concert and C3 could reasonably expect a concert patron to discover any
normal risk. The court further found C3 provided a safe means of egress by way of a concrete
path, which lead directly to an exit.
¶ 10 On appeal, plaintiff argues C3 owed her a duty of care to provide a safe egress from the
concert grounds but, instead, created an unreasonable risk of harm by forcing her to exit over a
crowded incline that was poorly lit and covered in trees, the dangerous condition of which was
exacerbated by the mud. She also argues both the deliberate encounter and distraction exceptions
to the open and obvious doctrine apply, thus weighing in favor of finding a duty of care. Finally
she argues C3 breached the duty owed to her and the condition of concert grounds was the
proximate cause of her injury.
¶ 11 Summary judgment is proper when the pleadings, depositions, affidavits, and admissions
on file, when viewed in the light most favorable to the nonmoving party, show that there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. Summary judgment is inappropriate when
material facts are disputed, reasonable persons could draw different inferences from the
undisputed facts, or reasonable persons could weigh the factors relevant to the legal standard at
issue differently. Seymour v. Collins, 2015 IL 118432, ¶ 42. As summary judgment is a drastic
means of disposing of litigation, it should only be granted when the moving party’s right to it is
free from doubt. Mashal, 2012 IL 112341, ¶ 49. We review de novo the trial court’s grant of
summary judgment. Gurba v. Community High School District No. 155, 2015 IL 118332, ¶ 10.
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¶ 12 In order to sustain her negligence action, plaintiff must present sufficient factual evidence
to establish the existence of a duty owed by C3 to her, a breach of that duty, and an injury
proximately caused by that breach of duty. See Keating v. 68th & Paxton, L.L.C., 401 Ill. App.
3d 456, 470 (2010). Unless a duty is owed, there can be no negligence. American National Bank
& Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 26 (1992). “Whether a duty
exists in a particular case is a question of law for the court to decide.” Marshall v. Burger King
Corp., 222 Ill. 2d 422, 430 (2006).
¶ 13 In determining whether a duty exists, the court considers whether a relationship existed
between the parties such that a legal obligation is placed upon one party for the other party’s
benefit. Sameer v. Butt, 343 Ill. App. 3d 78, 85 (2003). The factors a court considers when
determining whether a duty of care exists include “(1) the reasonable foreseeability of the injury;
(2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury;
and (4) the consequences of placing the burden on the defendant.” Krywin v. Chicago Transit
Authority, 238 Ill. 2d 215, 226 (2010). The weight given to each factor depends upon the
circumstances of the particular case. Simpkins v. CSX Transportation, Inc., 2012 IL 110662,
¶ 18.
¶ 14 Plaintiff alleges she was injured by a condition on defendant’s property while on the
property as an invitee. A concert attendee is a business invitee for purposes of determining duty
of care. Jones v. Live Nation Entertainment, Inc., 2016 IL App (1st) 152923, ¶ 37. When, as
here, a plaintiff asserts a premises liability claim, the foreseeability prong of the duty test is
determined with reference to section 343 of the Restatement (Second) of Torts. Genaust v.
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Illinois Power Co., 62 Ill. 2d 456, 468 (1976); see also LaFever v. Kemlite Co., 185 Ill. 2d 380,
389-90 (1998). Section 343 provides:
“A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”
Restatement (Second) of Torts § 343 (1965).
¶ 15 However, “[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.” Restatement
(Second) of Torts § 343A(1) (1965). Therefore, when a condition is open and obvious, generally
the possessor of land does not owe a duty of care to invitees “because the landowner ‘could not
reasonably be expected to anticipate that people will fail to protect themselves from any danger
posed by the condition.’ ” Ballog v. City of Chicago, 2012 IL App (1st) 112429, ¶ 21 (quoting
Ward v. K Mart Corp., 136 Ill. 2d 132, 148 (1990)).
¶ 16 “ ‘Obvious’ means that ‘both the condition and the risk are apparent to and would be
recognized by a reasonable man, in the position of the visitor, exercising ordinary perception,
intelligence, and judgment.’ ” Bruns v. City of Centralia, 2014 IL 116998, ¶ 16 (quoting
Restatement (Second) of Torts § 343A cmt. b, at 219 (1965)). “Whether a condition is open and
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obvious depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective
knowledge.” Prostran v City of Chicago, 349 Ill. App. 3d 81, 86 (2004). If there is no dispute
regarding the physical nature of the condition, whether the dangerous condition is open and
obvious is a question of law. See Bruns, 2014 IL 116998, ¶ 18.
¶ 17 A possessor of land has a general duty to provide a reasonable means of egress from his
property. Cf. Reed v. Galaxy Holdings, Inc., 394 Ill. App. 3d 39, 42 (2009) (“property owners
and business operators have a general duty to provide a reasonably safe means of ingress to and
egress from their business”). Plaintiff argues that C3 was negligent in failing to provide a safe
means of egress from the Butler Field area. She argues C3 owed her a duty of care to protect her
from the unreasonable risk of harm it created when it designated an exit route that forced her to
travel uphill, through rowdy crowds, over poorly lit, uneven, tree-clogged terrain. Viewing the
evidence in the light most favorable to plaintiff, we find that C3 was entitled to summary
judgment as there is no genuine issue of material fact regarding whether it owed a duty of care to
plaintiff.
¶ 18 It is undisputed that the Lollapalooza festival was held outdoors in Chicago’s Grant Park,
it had been raining for many hours, and the ground was muddy. Plaintiff testified in her
deposition that “[i]t was slippery,” she had difficulty walking because of the mud, and she saw
people “everywhere” falling due to the mud. Plaintiff testified that, as she walked cautiously to
exit the venue, the mud, and only the mud, caused her to slip and fall. Although plaintiff
mentioned the incline, poor lighting, trees, and overcrowded, uneven terrain as related to her fall,
when asked whether “anything but the mud” caused her fall, she replied “no.” Her testimony
therefore shows not only that the mud was the sole cause of her fall but that, given the people
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falling around her and her careful progress, she recognized the risk created by the muddy
condition. Accordingly, the mud was an open and obvious condition, evident to any reasonable
concert attendee present that evening. This determination is corroborated by Sylvia Dziadowiec,
who testified similarly regarding the difficulty walking in the mud and seeing people slip and fall
because of it.
¶ 19 Plaintiff argues the distraction exception and deliberate encounter exception to the open
and obvious doctrine apply, thus weighing in favor of finding a duty. If either exception applies,
a landowner may still be liable for a dangerous condition on the land notwithstanding its
obviousness. Bruns, 2014 IL 116998, ¶ 20.
¶ 20 The distraction exception to the open and obvious doctrine applies when “ ‘the possessor
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.’ ”
Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002) (quoting Restatement (Second) of Torts § 343A cmt. f,
at 220 (1965)). This exception is only applicable when “evidence exists from which a court can
infer that plaintiff was actually distracted.” Bruns, 2014 IL 116998, ¶ 22.
¶ 21 We disagree with plaintiff that the distraction applies here. She argues she was distracted
because of flashing strobe lights from the stage area, people pushing each other, people acting
“wild and crazy,” and people slipping, sliding, and falling. However, although plaintiff testified
regarding those conditions, she also testified that, as she was walking, she was looking down at
the ground and could see her feet and the mud. She further stated that she was walking
“cautiously,” trying to watch her step before her fall because she “knew” the ground was
“muddy” and “slippery.” She was therefore not only aware of the obvious slippery condition of
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the muddy ground but attempting to protect herself against the risk it posed by walking carefully.
Given plaintiff’s testimony, there is no evidence to support that she was “actually distracted” to
the extent that she would not discover or forget she had discovered the obvious slippery, muddy
condition. Bruns, 2014 IL 116998, ¶ 22.
¶ 22 We also disagree with plaintiff that the deliberate encounter exception to the open and
obvious doctrine applies. This exception refers to a situation “ ‘where the possessor has reason to
expect that the invitee will proceed to encounter the known or obvious danger because to a
reasonable man in his position the advantages of doing so would outweigh the apparent risk.’ ”
Sollami, 201 Ill. 2d at 15 (quoting Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)).
Courts analyzing the deliberate encounter exception must focus on what the landowner should
reasonably anticipate the invitee will do. See Atchley v. University of Chicago Medical Center,
2016 IL App (1st) 152481, ¶ 35. While “[t]he deliberate encounter exception has most often been
applied in cases involving some economic compulsion,” it is not limited to such situations.
Sollami, 201 Ill. 2d at 16.
¶ 23 Plaintiff argues the deliberate encounter exception applies here because C3 knew that she
and other concert patrons would determine that the risks associated with taking the western
egress from the Butler Field area were outweighed by the advantages of doing so. We disagree
that the exception applies. Plaintiff testified that she had entered the concert at a different
entrance than she tried to exit and that she took the particular “exit” route because that was
where the crowd was heading. However, she also testified that the route was muddy, slippery,
dark, uphill, through trees, and not on a concrete path and that she could not see an exit but was
merely following the crowd. We cannot conclude that it was foreseeable that a reasonable person
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would find the benefit of walking through the mud outweighed the obvious risk created by the
mud under these circumstances, especially when there were designated exit routes with concrete
paths available as marked on the 2011 Lollapalooza map, including an illuminated one a few feet
from where plaintiff fell. See Prostran, 349 Ill. App. 3d at 89-90 (finding that the plaintiff was
not “compelled” to use a certain area of sidewalk and it was reasonable to expect pedestrians
who encountered a dangerous condition that was open and obvious would use “readily available
alternative routes”). The deliberate encounter exception does not apply.
¶ 24 Having found the open and obvious doctrine applicable here, we must still analyze the
four factors associated with determining whether a duty exists. Bruns, 2014 IL 116998, ¶ 35. The
existence of an open and obvious dangerous condition affects the first two factors in the duty
analysis, as “[w]here the condition is open and obvious, the foreseeability of harm and the
likelihood of injury will be slight, thus weighing against the imposition of a duty. Bruns, 2014 IL
116998, ¶ 19; Atchley, 2016 IL App (1st) 152481, ¶ 33.
¶ 25 Turning to the two remaining factors, we find the magnitude of the burden and
consequences of placing the burden on C3 to prevent concertgoers from slipping on mud at an
outdoor park are significant. It would be impracticable to require C3 to prevent rainwater from
reaching the ground and mixing with dirt in an entire outdoor park or to constantly check the
grounds for the presence of mud and cover the muddy ground with mats or tarps in an effort to
prevent slipping. The imposition of guarding against the presence of mud in an outdoor park is
an onerous burden that cannot be justified given the open and obvious condition of mud in any
outdoor park following rainfall. We find, therefore, that C3 owed no duty legal duty to plaintiff
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to protect her from the open and obvious slippery condition created by the mud that caused her to
fall and break her ankle.
¶ 26 Plaintiff has failed to establish the existence of a duty owed to her by C3 and thus cannot
succeed on her negligence claim. Waters v. City of Chicago, 2012 IL App (1st) 100759, ¶ 12
(“Where no duty exists, the plaintiff cannot recover.”). We therefore decline to consider
plaintiff’s remaining arguments regarding breach and causation.
¶ 27 For the reasons set forth above, we affirm the judgment of the circuit court of Cook
County.
¶ 28 Affirmed.
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