Garcia v. Young ( 2011 )

NO. 4-10-0776 Opinion Filed 3/23/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
STEVEN GARCIA and AMBER GARCIA, ) Appeal from
Plaintiffs-Appellants, ) Circuit Court of
v. ) Champaign County
JACK YOUNG, ) No. 07L153
Defendant-Appellee. )
) Honorable
) Richard P. Klaus,
) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the judgment of the court, with
opinion.
Presiding Justice Knecht and Justice Turner concurred
in the judgment and opinion.
OPINION
On September 8, 2010, the trial court granted defendant
Jack Young's motion for summary judgment. Plaintiffs Steven and
Amber Garcia appeal, arguing the court erred in granting
defendant's motion because defendant owed plaintiff a duty to
warn Steven Garcia about and protect him from dangerous
conditions on defendant's property. We affirm.
BACKGROUND
In July 2007, the Garcias filed a two-count complaint
against Young. In count I of the complaint, Steven sought
damages for injuries he suffered after falling in a pothole on a
private street owned by defendant. In count II of the complaint,
Amber sought damages for loss of consortium because of her
husband Steven's injuries. According to the complaint, Steven
lived in the Village of Ludlow on Young Street in a rental
property owned by Young. Young also owned Young Street, which
was a private drive.
According to the complaint, prior to the incident in
question, Steven had informed Young that Young Street was in a
state of disrepair and constituted a hazard. Steven alleged
Young had a duty to exercise reasonable care to keep the road in
reasonably safe condition for individuals lawfully on the
property. The Garcias alleged Young breached this duty by
failing (1) to repair the potholes in the road, (2) to mark and
identify the potholes, (3) to secure the area where the potholes
were located, and (4) to warn the Garcias about the pothole.
Although not noted in the complaint, Stephen's injury allegedly
occurred when he entered the road to attempt to save his stepson
from an approaching vehicle.
On June 15, 2010, Young filed a motion for summary
judgment and a memorandum in support of his motion. For purposes
of the motion for summary judgment, Young did not dispute the
existence, location, or size of the pothole complained of by
plaintiffs.
According to the memorandum in support of defendant's
motion, Steven's injuries allegedly resulted when he stepped in a
pothole approximately two feet in diameter and eight inches deep.
In arguing for summary judgment, Young relied on the "open and
obvious" doctrine. Young argued neither the "deliberate
encounter" exception nor the "distraction" exception applied to
the Garcias' claim.
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In July 2010, the Garcias filed a response to Young's
motion for summary judgment. The Garcias' response noted Young
Street was a gravel road at the time of the incident. According
to the response, Young occasionally put down new gravel, leveled
out the gravel with a tractor, and placed "road pack" in the area
of the potholes. The Garcias noted Young testified in his
deposition he knew people walked on the road and he had concerns
about children being in the street because they might get run
over.
On September 8, 2010, the trial court held a hearing on
Young's motion for summary judgment. The trial court noted it
had Young's motion for summary judgment and a memorandum in
support thereof, the Garcias' response to the motion, Young's
reply to the Garcias' response, and deposition transcripts.
The trial court found the pothole clearly was an "open
and obvious" condition as a matter of law. The court also found
neither the "deliberate encounter" exception nor the
"distraction" exception applied in this case. As a result, the
court granted Young's motion for summary judgment.
This appeal followed.
II. ANALYSIS
"To prevail on a claim of negligence, a plaintiff must
prove, among other things, that defendant owed a duty of care to
the plaintiff." Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill.
App. 3d 249, 255, 942 N.E.2d 640, 646 (2010). "[W]hether a duty
exists is a question of law to be decided by the court."
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Kleiber, 406 Ill. App. 3d at 256, 942 N.E.2d at 646. Courts
consider the following factors in determining whether a duty
exists: "(1) the reasonable foreseeability of injury to another,
(2) the reasonable likelihood of injury, (3) the magnitude of the
burden that guarding against injury places on the defendant, and
(4) the consequences of placing that burden on the defendant."
Kleiber, 406 Ill. App. 3d at 256, 942 N.E.2d at 646.
As a general rule, a landowner has no duty with regard
to "open and obvious" conditions. Hope v. Hope, 398 Ill. App. 3d
216, 220, 924 N.E.2d 581, 584 (2010). The Garcias concede, for
purposes of the motion, the pothole was an "open and obvious"
condition.
Our supreme court has recognized a "distraction"
exception and a "deliberate encounter" exception to this general
rule. Sollami v. Eaton, 201 Ill. 2d 1, 15-18, 772 N.E.2d 215,
223-25 (2002). The Garcias argue their situation falls under
both of these exceptions and the trial court erred in granting
defendant's motion for summary judgment.
A. Standard of Review
We review a trial court's decision to grant a motion
for summary judgment de novo. Green v. Carlinville Community
Unit School District No. 1, 381 Ill. App. 3d 207, 211, 887 N.E.2d
451, 454 (2008).
"The purpose of summary judgment is not to
try a question of fact, but rather to
determine whether a genuine issue of material
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fact exists. [Citations.] Summary judgment
is appropriate only where 'the pleadings,
depositions, and admissions on file, together
with the affidavits, if any, show that there
is no genuine issue as to any material fact
and that the moving party is entitled to a
judgment as a matter of law.' [Citation.]"
Adams v. Northern Illinois Gas Co., 211 Ill.
2d 32, 42-43, 809 N.E.2d 1248, 1256 (2004).
B. "Deliberate Encounter" Exception
Under the "deliberate encounter" exception, the "open
and obvious" rule is inapplicable if the landowner has reason to
anticipate or expect the invitee will proceed to encounter an
"open and obvious" condition because the advantages of doing so
outweigh the apparent risks to a reasonable person in the
invitee’s position. Kleiber, 406 Ill. App. 3d at 257, 942 N.E.2d
at 648. The Garcias argued:
"It is undisputed that prior to the
accident, Mr. Garcia was aware that potholes
existed on Young Street, and believed that
this particular pothole had existed for weeks
[citation]. Mr. Garcia had not previously
noticed this specific pothole, but he was
aware that Young Street was full of similar
potholes. [Citation.] Despite knowing of
the existence of these potholes, Mr. Garcia
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made the conscious decision to enter the
street to retrieve his stepson who had
entered the path of an oncoming vehicle."
However, whether Mr. Garcia deliberately encountered
the street itself is not relevant as the street is not the
condition which allegedly caused his injury. The pothole, not
the street, was the "open and obvious" condition which allegedly
caused plaintiff's injuries.
Without even discussing whether a reasonable landowner
in Young's position should have reasonably anticipated an
individual might deliberately encounter the pothole, the Garcias’
argument fails because Steven Garcia did not deliberately
encounter the pothole. In fact, Steven Garcia stated in his
brief he had not specifically noticed this particular pothole.
The cases relied upon by plaintiffs are
distinguishable from this case. In those cases, the plaintiffs
deliberately encountered the respective "open and obvious"
conditions. For example, in Ralls v. Village of Glendale
Heights, 233 Ill. App. 3d 147, 150, 598 N.E.2d 337, 341 (1992),
the plaintiff deliberately encountered a steep, snow-covered
earthen incline. In LaFever v. Kemlite Co., 185 Ill. 2d 380, 392,
706 N.E.2d 441, 448 (1998), the plaintiff deliberately
encountered a work area covered with very slick materials. In
Rusch v. Leonard, 399 Ill. App. 3d 1026, 1028, 927 N.E.2d 316,
319 (2010), the plaintiff deliberately encountered an
"'unsecured, unprotected and unguarded'" stairwell. Since Steven
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Garcia did not deliberately encounter the "open and obvious"
condition (the pothole) in this case, this exception does not
apply.
C. "Distraction" Exception
Another exception to the "open and obvious" rule is the
"distraction" exception. This exception applies if the landowner
has reason to expect or anticipate that an invitee's attention
will be distracted to the extent the invitee will forget about
the condition or will fail to protect himself or herself from the
condition. Kleiber, 406 Ill. App. 3d at 257, 942 N.E.2d at 647-
48.
The Garcias cite Clifford v. Wharton Business Group,
L.L.C., 353 Ill. App. 3d 34, 44, 817 N.E.2d 1207, 1216 (2004),
for the proposition a defendant does not have to create or
aggravate a distraction for the "distraction" exception to be
applicable. In addition, the Garcias cite Clifford for the
proposition foreseeability of the distraction does not require
foreseeability of the specific manner in which a plaintiff is
distracted. Clifford, 353 Ill. App. 3d at 46, 817 N.E.2d at
1217-18.
However, we note Sandoval v. City of Chicago, 357 Ill.
App. 3d 1023, 830 N.E.2d 722 (2005), distinguished Clifford and
other similar cases. The Sandoval court stated:
"[P]rimarily, in those instances where our
courts have applied the distraction exception
to impose a duty upon a landowner, it is
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clear that the landowner created, contributed
to, or was responsible in some way for the
distraction which diverted the plaintiff's
attention from the open and obvious condition
and, thus, was charged with reasonable
foreseeability that an injury might occur."
Sandoval, 357 Ill. App. 3d at 1030, 830
N.E.2d at 729.
The facts in this case are similar to those in
Sandoval. The plaintiff in Sandoval brought suit against the
defendant after she injured herself by falling in a large hole in
a sidewalk. Sandoval, 357 Ill. App. 3d at 1024, 830 N.E.2d at
724. The plaintiff relied on the "distraction" exception to the
"open and obvious" rule. Sandoval, 357 Ill. App. 3d at 1026, 830
N.E.2d at 725. The court in Sandoval noted the plaintiff
admitted she was only distracted from the sidewalk by her concern
for the child she was babysitting who had walked out of her
sight. She was not looking at the ground where she was walking.
The court stated:
"Defendant in no way was responsible for,
contributed to, or created this situation,
which began when plaintiff brought the child
outside to the parkway. Accordingly, we find
that defendant owed no duty to plaintiff to
warn or otherwise safeguard her from
potential harm posed by the open and obvious
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sidewalk defect in front of her home, where
her injury resulted not from a distraction
that could be reasonably anticipated by
defendant but, instead, was the result of her
own inattentiveness in not looking forward
where she was walking." Sandoval, 357 Ill.
App. 3d at 1031, 830 N.E.2d at 730.
The same is true in this case. The record does not reflect Young
was responsible for, contributed to, or created the situation
which allegedly distracted Steven Garcia.
Because plaintiff concedes the pothole was an "open and
obvious" condition and we have concluded as a matter of law
neither the "deliberate encounter" exception nor the
"distraction" exception is applicable in this case, Young did not
have a duty to either warn or protect the Garcias from the
condition which allegedly caused Steven Garcia's injury.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
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