Prostran v. City of Chicago

• Decision Date: 11 June 2004
• Docket Number: No. 1-03-0656.,1-03-0656.
• Citation: 811 N.E.2d 364,285 Ill.Dec. 123,349 Ill.App.3d 81
• Parties: Mildred PROSTRAN, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

811 N.E.2d 364

349 Ill.App.3d 81

285 Ill.Dec. 123

Mildred PROSTRAN, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.

No. 1-03-0656.

Appellate Court of Illinois, First District, Sixth Division.

June 11, 2004.

Mullen, Minella & Kelliher, Chicago (Richard C. Gleason, of counsel), for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Valerie Quinn, of counsel), for Appellee. Presiding Justice FROSSARD delivered the opinion of the court:

In this personal injury case, plaintiff Mildred Prostran sued the City of Chicago (the City), alleging that she fell on a dug-up section of sidewalk and broke two bones in her left wrist. The City moved for summary judgment, arguing that it owed plaintiff no duty as the defect in the sidewalk was open and obvious and that it was immune from liability for failure to provide warning devices. The trial court granted the City's motion. On appeal, plaintiff contends that, due to her visual handicap, the defect of the sidewalk was not open and obvious and that the City should have anticipated that visually disabled people might not notice the condition, appreciate the risk, and avoid the area.

BACKGROUND

Plaintiff filed a complaint against the City, contending that she was injured due to the City's negligence. She asserted that the City owed her a duty to maintain its sidewalks and that the City had breached its duty by allowing rocks, dirt, and debris to accumulate on the sidewalk while it was under construction; by failing to barricade and protect the sidewalk while it was under construction; by failing to post any warning signs or cautionary devices in the area; and by failing to provide alternative means around the construction. Plaintiff sought $50,000 in damages.

At her deposition, plaintiff testified that about 8:50 a.m. on September 1, 1999, she was walking south on the sidewalk on the east side of North Oakley on her way to the bus stop at Addison and North Oakley. Her normal walking route to the bus stop was on North Oakley and she would "go that way practically every day." Part of her route crossed an alley at about 3615 North Oakley. Plaintiff testified that on the morning in question, when she was about four or five sidewalk squares from where the sidewalk crossed the alley, she "noticed that they were repairing the alley." Defense counsel asked the following questions:

"Q. Okay, what did you notice? What did you see exactly?

* * *

A. As I approached it, I saw that there was — it was dug rather deep.

Q. And when you say dug, what was dug?

A. The space that was dug out was dug deep, and there was a lot of rocks in there and a lot of mud, a [m]ixture of rocks and mud.

Q. Was this visible to you when you were four-to-five squares away?

A. No. When I got close to it, I saw it better."

Plaintiff explained that the entire area of the alley between the two sections of sidewalk was dug up. She agreed that the dug-up area was about seven square feet in size, and that while the depth of the digging varied, with the area "higher toward the end and lower in the middle," the digging was about six inches deep. When asked whether she could see "this" as she approached the alley, plaintiff replied, "I saw it when I reached there, yes."

Plaintiff stated that she started to walk over the dug-up sidewalk. As she put one foot down, "all of a sudden [she] was sailing across the whole length of the dug up space." She explained that she took "one big step" before she fell, and she stated that a rock caused her to fall to the ground. Defense counsel asked plaintiff whether she was able to see the rocks before she started walking on them. Plaintiff replied, "I noticed the inside, there were a lot of rocks and debris inside. It was like caked mud. ButI — when I fell, I turned around and looked, that's when I saw the rocks." Later in the deposition, she reiterated, "I turned around and I looked — I turned and looked to see what made me fall, that's when I saw the rock in the center and the one on each side, and the one in the center." In response to the question whether anything obstructed her view of these rocks as she started to walk in the dug up area, plaintiff stated, "There were sections inside of the dug out hole that were rough, and there were rocks in there." Plaintiff further testified that on the morning she fell, there were no barricades or warning signs around the dug-up area and no boards placed over it for pedestrians to walk on.

Defense counsel asked plaintiff whether anything prevented her from walking on the sidewalk on the west side of North Oakley, instead of the dug-up east side. Plaintiff answered, "You have to be extremely careful when you walk there. You have the alley coming this way and you have alley coming this way. The alley that comes this way, they come tearing out of there like crazy. The alley that goes this way, they come at a slow pace." Plaintiff also viewed photographs of the sidewalk. She stated that the photos did not accurately depict the way the area looked at the time she fell because the sidewalk had been paved.

Plaintiff testified that as a result of her fall, she suffered a cut to her big toe and two broken bones in her left wrist. Finally, plaintiff testified that she has been blind in her left eye for 38 years. In addition, she has a cataract and an astigmatism in her right eye. She only wears glasses for reading and was not wearing them when she fell.

The City filed a motion for summary judgment in which it argued that because the condition of the alley was open and obvious it owed plaintiff no duty and that pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-104 (West 1998)), it was immune from liability for failure to provide warning devices. Following a hearing, the trial court found that the defect in the sidewalk was open and obvious and granted the City's motion. This appeal followed.

ANALYSIS

Summary judgment is proper where the pleadings, depositions, affidavits, and admissions on file, when viewed in the light most favorable to the nonmoving party, demonstrate that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000); Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill.2d 17, 30-31, 241 Ill.Dec. 627, 719 N.E.2d 756 (1999). A plaintiff need not prove her case during a summary judgment proceeding, but must present some evidence to support each element of the cause of action. Ross v. Dae Julie, Inc., 341 Ill.App.3d 1065, 1069, 275 Ill.Dec. 588, 793 N.E.2d 68 (2003). We review grants of summary judgment de novo. Morris v. Margulis, 197 Ill.2d 28, 35, 257 Ill.Dec. 656, 754 N.E.2d 314 (2001). A grant of summary judgment may be affirmed on any ground supported by the record, even if that ground was not relied on by the trial court. Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill.App.3d 969, 971, 266 Ill.Dec. 129, 773 N.E.2d 1199 (2002), citing Leonardi v. Loyola University, 168 Ill.2d 83, 97, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995).

To state a cause of action for negligence, a plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, that the defendant breached the duty, and that an injury was proximately caused by the breach. Bajwa v. Metropolitan Life Insurance Co., 208 Ill.2d 414, 421, 281 Ill.Dec. 554, 804 N.E.2d 519 (2004). On appeal, plaintiff contends that the trial court erred in finding that she failed to establish the existence of a duty. She argues that, due to her visual handicap, the defect in the sidewalk was not open and obvious and that, due to the general condition of the sidewalk, she did not see the specific rock upon which she tripped until after she fell. She further argues that the City should have anticipated that visually disabled people might not notice the condition, appreciate the risk, and avoid the area. Whether a duty exists is a question of law. Bajwa, 208 Ill.2d at 422,281 Ill.Dec. 554,804 N.E.2d 519.

Ordinarily, parties who own, occupy, control, or maintain land are not required to foresee and protect against injuries from potentially dangerous conditions that 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 "`[o]bvious' denotes 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., 141 Ill.2d 430, 435, 152 Ill.Dec. 552, 566 N.E.2d 239 (1990), quoting Restatement (Second) of Torts § 343A, Comment b, at 219 (1965). Whether a condition is open and obvious depends on the objective knowledge of a reasonable person, not the plaintiff's subjective knowledge. Bonner v. City of Chicago, 334 Ill.App.3d 481, 484, 268 Ill.Dec. 299, 778 N.E.2d 285 (2002).

Courts in other jurisdictions have applied this objective standard even where the plaintiff is visually impaired. See, e.g., Lauff v. Wal-Mart Stores, Inc., No. 1:01-CV-777, 2002 WL 32129976 (W.D.Mich. October 2, 2002) (granting defendant's motion for summary judgment where legally blind plaintiff was unable to see "gook" on restroom floor but condition would have been open and obvious to an ordinarily prudent person); Sidorowicz v. Chicken Shack, Inc., 469 Mich. 912, 673 N.W.2d 106 (2003) (holding, in case involving blind plaintiff, that the determination of whether a particular open and obvious condition is nonetheless unreasonably dangerous is made using an objective, not subjective, standard); Lugo v. Ameritech Corp., 464 Mich. 512, 518 n. 2, 629 N.W.2d 384, 387 n. 2 (2001) (holding that whether a plaintiff has "a particular susceptibility to injury" is "immaterial to whether an open and obvious...