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SIXTH DIVISION
OCTOBER 4, 2002

JUSTICE TULLY delivered the opinion of the court:

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

The pleadings, affidavits, depositions and photographsbefore the trial court established the following facts. On June3, 1999, the 72-year-old plaintiff drove from the currencyexchange he owned at 3536 West Armitage Avenue in Chicago to theCorus Bank branch at Irving Park and Lincoln Avenues. He wascarrying $4,000 in cash in a paper bag and checks for deposit atthe bank. Plaintiff parked his car at a meter along the curb inthe 3900 block of North Damen Avenue, exited the car, stepped onthe sidewalk and began walking toward the bank. He immediatelynoticed that two men in their early twenties appeared to bestaring at him from a bus stop about 70 feet away. Plaintiffbecame suspicious, fearing that the men might rob him. The menwere standing still and looking in plaintiff's direction, butthey did not speak or walk toward him. Plaintiff never took hiseyes off the suspicious men, and he walked near the curb so hecould quickly return to his car if the men approached him. Afterwalking a short distance, plaintiff tripped over the light polebase which consisted of a 12-inch-wide cluster of four bolts on araised concrete foundation. Each bolt protruded about threeinches from the surface of the sidewalk. As a result of hisfall, plaintiff suffered a fractured left shoulder which requiredsurgery and physical therapy and limited his ability to work. Healso fractured a bone in his right hand and sustained lacerationsto his face requiring five sutures to close.

According to a bystander's report, the trial court grantedthe City's motion for summary judgment based on its finding thatplaintiff's distraction was not reasonably foreseeable.

On appeal, plaintiff contends that summary judgment wasimproper because a question of fact existed as to whether theCity had a duty of reasonable care because it was foreseeablethat a pedestrian would be distracted and fail to see the openand obvious light pole base. Alternatively, plaintiff contendsthat even if the harm was not foreseeable, the City still had aduty of reasonable care because injury to pedestrians was likelyand the burden on the City to protect pedestrians from the hazardwas negligible. The City responds that summary judgment wasproper because plaintiff did not dispute the fact that thecondition was open and obvious, and did not present a legallysufficient reason as to why the City should have foreseen thatplaintiff would be distracted.

A cause of action for negligence requires the plaintiff toestablish that the defendant owed a duty of care and breachedthat duty resulting in an injury proximately caused by thebreach. Curatola v. Village of Niles, 154 Ill. 2d 201, 207(1993). Whether a duty of care exists is a question of law whichmay be determined on a motion for summary judgment. Curatola,154 Ill. 2d at 207. In summary judgment cases, we review theevidence de novo and construe all evidence strictly against themoving party and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113(1995). "A motion for summary judgment should be granted onlywhere the pleadings, depositions, admissions and affidavits showthat no genuine issue of material fact exists and that the movingparty is entitled to judgment as a matter of law." First ofAmerica Trust Co. v. First Illini Bancorp, Inc., 289 Ill. App. 3d276, 283 (1997).

The Local Governmental and Governmental Employees TortImmunity Act (Act) (745 ILCS 10/1 et seq. (West 2000)) governsthe tort liability of municipalities. West v. Kirkham, 147 Ill.2d 1, 5 (1992). According to section 3-102(a) of the Act, "alocal public entity has the duty to exercise ordinary care tomaintain its property in a reasonably safe condition for the usein the exercise of ordinary care of people whom the entityintended and permitted to use the property in a manner in whichand at such times as it was reasonably foreseeable that it wouldbe used ***." 745 ILCS 10/3-102(a) (West 2000). The factorsrelevant to the question of whether a duty exists are: "(1)foreseeability that defendant's conduct will result in injury toanother; (2) likelihood of injury; (3) the magnitude of guardingagainst it; and (4) the consequences of placing that burden uponthe defendant." Curatola, 154 Ill. 2d at 214.

Parties who own or control land are not required to foreseeand protect against injuries if the potentially dangerousconditions are open and obvious. Bucheleres v. Chicago ParkDistrict, 171 Ill. 2d 435, 447-48 (1996). "The term 'obvious'means that 'both the condition and the risk are apparent to andwould be recognized by a reasonable [person], in the position ofthe visitor, exercising ordinary perception, intelligence, andjudgment.'" Deibert v. Bauer Brothers Construction Co., Inc.,141 Ill. 2d 430, 435 (1990), adopting the definition of "obvious" in the Restatement (Second) of Torts