In a case lawyers usually refer to as a slip and fall matter, Virginia Bruns sued the City of Centralia when she fell on a raised section of a public sidewalk while going to an eye clinic. The city’s records showed that the roots of a nearby tree caused the sidewalk to crack and another person had tripped at the same place.
The eye clinic also had reported the condition to the City of Centralia and offered to remove the tree on its own. The city’s tree committee refused the clinic’s offer due to the historic significance of the tree, even though the danger was open and obvious. It was reasonably foreseeable that a patron of the clinic might be distracted while walking to the clinic.
Under the circumstances, the question for the Illinois Supreme Court is whether the city’s alleged breach of its duty of reasonable care should have been a fact question to be determined by a jury.
The entry of summary judgment in favor of the city was reversed by the appellate court, and this petition to the Illinois Supreme Court was taken. The Illinois Appellate Court for the 5th District reversed and remanded the case for further disposition to the trial court, but the Illinois Supreme Court has accepted the case for further determination.
This occurrence took place on March 27, 2012 when Virginia Bruns was on her way to the Centralia Eye Clinic. The weather was clear, and no other pedestrian was walking on the sidewalk.
As she approached the clinic, she tripped and fell, injuring herself. Bruns was 80 years old at the time and had been a patient of the eye clinic since December 2011. She was treated for various eye problems.At the trial court level, the judge determined that the sidewalk defect at issue was open and obvious as a matter of law and that the distraction exception was inapplicable under the circumstances.
There was no argument that the crack in the sidewalk was open and obvious as a matter of law, but that’s not where the determination ends. The essential elements of a cause of action based on common law negligence are the existence of a duty owed by the defendant to the plaintiff, breach of that duty and an injury proximately caused by that breach. Ward v. K mart Corp., 135 Ill.2d 132, 140 (1990).
However, the courts have long recognized a “distraction” exception to the open and obvious danger rule that is grounded in foreseeability. The exception applies when there is a reason to expect that a plaintiff’s attention may be distracted from the open and obvious condition because of circumstances required of him or her to focus on some other condition to the extent that he or she will forget the hazard that has already been discovered. Clifford v. Wharton Business Group, LLC, 353 Ill. App. 3d 34 (2004).
The key factor in the appellate court decision was foreseeability of the likelihood that an individual’s attention may be distracted from the open and obvious condition, not the creation of the distraction. The reason being given for the reversal by the Illinois Appellate Court for the 5th District was that the city must have awareness that those in proximity to the open and obvious hazard are likely to become distracted in some way and forget about the presence of the hazard.
Whether the city breached its duty of reasonable care to the plaintiff under these circumstances is a question for the jury to decide. Therefore, the appellate court reversed and remanded the case for further disposition.
Now the Illinois Supreme Court has considered the briefs and oral arguments of the parties. The city argued that one’s own inattentiveness cannot be the type of distraction that creates landowner liability. Rather, the city argued that the distraction must be some other hazard or condition that prevents one from focusing on the known and obviously dangerous condition. The city also maintained that the court should consider whether the landowner was in any way responsible for causing the distraction. The Illinois Supreme Court decision and opinion should clarify the distraction exception to landowner’s liability.
Virginia Bruns v. The City of Centralia, Illinois, No. 2013 IL App (5th) 130094.
Kreisman Law Offices has been successfully handling injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Calumet Heights, Deerfield, Palatine, Rolling Meadows, Northlake, Franklin Park, Oak Park, Cicero, Joliet, Waukegan, Elgin and Aurora, Ill.
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