Bonner v. City of Chicago

• Decision Date: 04 October 2002
• Docket Number: No. 1-01-1182.,1-01-1182.
• Citation: 778 N.E.2d 285,268 Ill.Dec. 299,334 Ill. App.3d 481
• Parties: Raymond J. BONNER, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

778 N.E.2d 285

334 Ill. App.3d 481

268 Ill.Dec. 299

Raymond J. BONNER, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 1-01-1182.

Appellate Court of Illinois, First District, Sixth Division.

October 4, 2002.

Richard Lee Stavins, Howard S. Golden, of Robbins, Salomon & Patt, Chicago, for Plaintiff-Appellant.

Mara S. Georges, Corporation Counsel, Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, Mardell Nereim, Senior Counsel, Chicago, for Defendant-Appellee.

Justice TULLY delivered the opinion of the court:

Plaintiff Raymond J. Bonner filed a negligence action against defendant, the City of Chicago (City), seeking damages for injuries he sustained when he tripped on a light pole base on the sidewalk in the 3900 block of North Damen Avenue. The trial court granted defendant's motion for summary judgment. Plaintiff appeals, claiming that summary judgment was improper because a jury should have decided whether plaintiff's injury was foreseeable and the City breached its duty of reasonable care. We affirm.

The pleadings, affidavits, depositions and photographs before the trial court established the following facts. On June 3, 1999, the 72-year-old plaintiff drove from the currency exchange he owned at 3536 West Armitage Avenue in Chicago to the Corus Bank branch at Irving Park and Lincoln Avenues. He was carrying $4,000 in cash in a paper bag and checks for deposit at the bank. Plaintiff parked his car at a meter along the curb in the 3900 block of North Damen Avenue, exited the car, stepped on the sidewalk and began walking toward the bank. He immediately noticed that two men in their early twenties appeared to be staring at him from a bus stop about 70 feet away. Plaintiff became suspicious, fearing that the men might rob him. The men were standing still and looking in plaintiff's direction, but they did not speak or walk toward him. Plaintiff never took his eyes off the suspicious men, and he walked near the curb so he could quickly return to his car if the men approached him. After walking a short distance, plaintiff tripped over the light pole base which consisted of a 12-inch-wide cluster of four bolts on a raised concrete foundation. Each bolt protruded about three inches from the surface of the sidewalk. As a result of his fall, plaintiff suffered a fractured left shoulder which required surgery and physical therapy and limited his ability to work. He also fractured a bone in his right hand and sustained lacerations to his face requiring five sutures to close.

According to a bystander's report, the trial court granted the City's motion for summary judgment based on its finding that plaintiff's distraction was not reasonably foreseeable. On appeal, plaintiff contends that summary judgment was improper because a question of fact existed as to whether the City had a duty of reasonable care because it was foreseeable that a pedestrian would be distracted and fail to see the open and obvious light pole base. Alternatively, plaintiff contends that even if the harm was not foreseeable, the City still had a duty of reasonable care because injury to pedestrians was likely and the burden on the City to protect pedestrians from the hazard was negligible. The City responds that summary judgment was proper because plaintiff did not dispute the fact that the condition was open and obvious, and did not present a legally sufficient reason as to why the City should have foreseen that plaintiff would be distracted.

A cause of action for negligence requires the plaintiff to establish that the defendant owed a duty of care and breached that duty resulting in an injury proximately caused by the breach. Curatola v. Village of Niles, 154 Ill.2d 201, 207, 181 Ill.Dec. 631, 608 N.E.2d 882 (1993). Whether a duty of care exists is a question of law which may be determined on a motion for summary judgment. Curatola, 154 Ill.2d at 207, 181 Ill.Dec. 631, 608 N.E.2d 882. In summary judgment cases, we review the evidence de novo and construe all evidence strictly against the moving party and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). "A motion for summary judgment should be granted only where the pleadings, depositions, admissions and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." First of America Trust Co. v. First Illini Bancorp, Inc., 289 Ill.App.3d 276, 283, 226 Ill.Dec. 248, 685 N.E.2d 351 (1997).

Duty Based on Foreseeability

The Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1 et seq. (West 2000)) governs the tort liability of municipalities. West v. Kirkham, 147 Ill.2d 1, 5, 167 Ill.Dec. 974, 588 N.E.2d 1104 (1992). According to section 3-102(a) of the Act, "a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used * * *." 745 ILCS 10/3-102(a),(West 2000). The factors relevant to the question of whether a duty exists are: "(1) foreseeability that defendant's conduct will result in injury to another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon the defendant." Curatola, 154 Ill.2d at 214, 181 Ill.Dec. 631, 608 N.E.2d 882.

Parties who own or control land are not required to foresee and protect against injuries if the potentially dangerous conditions are open and obvious. Bucheleres v. Chicago Park District, 171 Ill.2d 435, 447-48, 216 Ill.Dec. 568, 665 N.E.2d 826 (1996). "The term `obvious' means that `both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.'" Deibert v. Bauer Brothers Construction Co., Inc., 141 Ill.2d 430, 435, 152 Ill.Dec. 552, 566 N.E.2d 239 (1990), adopting the definition of "obvious" in the Restatement (Second) of Torts § 343A, Comment b, at 219 (1965). Accordingly, whether a condition is obvious depends on the objective knowledge of a reasonable person, not on the plaintiff's subjective knowledge. Wreglesworth v. Arctco, Inc., 317 Ill.App.3d 628, 635-36, 251 Ill.Dec. 363, 740 N.E.2d 444 (2000).

There are two limited exceptions to the rule that a defendant has no duty to protect a plaintiff from an open and obvious condition. Ward v. K mart Corp., 136 Ill.2d 132, 147, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990). Relevant here is "the distraction exception" which provides that a property owner owes a duty of care if there is a reason to expect that the plaintiff's attention might be distracted so that he would not discover the obvious condition. Ward, 136 Ill.2d at 149-50, 143 Ill.Dec. 288, 554 N.E.2d 223, adopting the reasoning in Restatement (Second) of Torts, § 343A, comment f, at 220 (1965). The proper inquiry is "whether a defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but may reasonably be expected to be distracted, as when carrying large bundles * * *." Ward, 136 Ill.2d at 152, 143 Ill.Dec. 288, 554 N.E.2d 223.

A defendant does not need to anticipate a plaintiff's own negligence. Ward, 136 Ill.2d at 152, 143 Ill.Dec. 288, 554 N.E.2d 223. "[I]t would be unreasonable to require defendants to anticipate that [a] plaintiff * * * would blind himself to the probable consequences of his own actions." Richardson v. Vaughn, 251 Ill. App.3d 403, 408, 190 Ill.Dec. 643, 622 N.E.2d 53 (1993) (defendant was not required to anticipate that a plaintiff would run several yards while looking back over his shoulder before he saw a cable suspended between two trees). "Defendants should not be confronted with the impossible burden of rendering their premises injury-proof, and they are entitled to the expectation that their patrons will exercise reasonable care for their own safety." Richardson, 251 Ill.App.3d at 409, 190 Ill. Dec. 643, 622 N.E.2d 53.

In this case, the issue is whether, as a matter of law, it was foreseeable that plaintiff would be distracted from an obvious condition by his fear of being robbed. The evidence before the court did not show that plaintiff's fear was anything other than subjective or that the City should have foreseen that a reasonable person walking on the sidewalk would be so distracted by the threat of crime that he could not exercise reasonable care for his own safety. Accordingly, the distraction exception to the rule that there is no duty to protect a plaintiff from an open and obvious condition does not apply in this case. Thus, the duty element necessary for a finding of negligence is absent.

Plaintiff attempts to distinguish the facts in Richardson from those in the present case by arguing that the amount of real estate covered during the plaintiff's distraction affects foreseeability. Consequently, he contends, it was not foreseeable that the plaintiff in Richardson would run several yards while he was distracted, but it was foreseeable that the plaintiff in this case would walk a few steps while he was distracted. However, plaintiff's distinction is precluded by Richardson where the court found that "the line between mere inattention and reasonably foreseeable distraction is not susceptible to mathematic precision and requires a careful focus upon the particular facts at hand." Richardson, 251 Ill.App.3d at 409, 190 Ill.Dec. 643, 622 N.E.2d 53.

In this case, the facts support the conclusion that plaintiff's brief distraction was no more foreseeable than the relatively longer...