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SIXTH DIVISION
June 11, 2004

No. 1-03-0656

 

PRESIDING JUSTICE O'MARA 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. TheCity moved for summary judgment, arguing that it owed plaintiff no duty as the defect in thesidewalk was open and obvious and that it was immune from liability for failure to providewarning 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 Cityshould have anticipated that visually disabled people might not notice the condition, appreciate therisk, and avoid the area.

BACKGROUND

Plaintiff filed a complaint against the City, contending that she was injured due to theCity's negligence. She asserted that the City owed her a duty to maintain its sidewalks and thatthe City had breached its duty by allowing rocks, dirt, and debris to accumulate on the sidewalkwhile it was under construction; by failing to barricade and protect the sidewalk while it wasunder construction; by failing to post any warning signs or cautionary devices in the area; and byfailing 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 waswalking south on the sidewalk on the east side of North Oakley on her way to the bus stop atAddison and North Oakley. Her normal walking route to the bus stop was on North Oakley andshe would "go that way practically every day." Part of her route crossed an alley at about 3615North Oakley. Plaintiff testified that on the morning in question, when she was about four or fivesidewalk squares from where the sidewalk crossed the alley, she "noticed that they were repairingthe 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 dugrather deep.

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

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

Q. Was this visible to you when you were four-to-fivesquares 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 sidewalkwas dug up. She agreed that the dug-up area was about seven square feet in size, and that whilethe depth of the digging varied, with the area "higher toward the end and lower in the middle," thedigging was about six inches deep. When asked whether she could see "this" as she approachedthe 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 footdown, "all of a sudden [she] was sailing across the whole length of the dug up space." Sheexplained that she took "one big step" before she fell, and she stated that a rock caused her to fallto the ground. Defense counsel asked plaintiff whether she was able to see the rocks before shestarted walking on them. Plaintiff replied, "I noticed the inside, there were a lot of rocks anddebris inside. It was like caked mud. But I -- when I fell, I turned around and looked, that'swhen I saw the rocks." Later in the deposition, she reiterated, "I turned around and I looked -- Iturned and looked to see what made me fall, that's when I saw the rock in the center and the oneon each side, and the one in the center." In response to the question whether anything obstructedher view of these rocks as she started to walk in the dug up area, plaintiff stated, "There weresections inside of the dug out hole that were rough, and there were rocks in there." Plaintifffurther testified that on the morning she fell, there were no barricades or warning signs around thedug-up area and no boards placed over it for pedestrians to walk on.

Defense counsel asked plaintiff whether anything prevented her from walking on thesidewalk 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 andyou have alley coming this way. The alley that comes this way, they come tearing out of therelike crazy. The alley that goes this way, they come at a slow pace." Plaintiff also viewedphotographs of the sidewalk. She stated that the photos did not accurately depict the way thearea 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 twobroken bones in her left wrist. Finally, plaintiff testified that she has been blind in her left eye for38 years. In addition, she has a cataract and an astigmatism in her right eye. She only wearsglasses for reading and was not wearing them when she fell.

The City filed a motion for summary judgment in which it argued that because thecondition of the alley was open and obvious it owed plaintiff no duty and that pursuant to theLocal 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 ahearing, the trial court found that the defect in the sidewalk was open and obvious and granted theCity's motion. This appeal followed.

Summary judgment is proper where the pleadings, depositions, affidavits, and admissionson file, when viewed in the light most favorable to the nonmoving party, demonstrate that nogenuine issue of material fact exists and that the moving party is entitled to a judgment as a matterof law. 735 ILCS 5/2-1005©) (West 2000); Petrovich v. Share Health Plan of Illinois, Inc., 188Ill. 2d 17, 30-31 (1999). A plaintiff need not prove her case during a summary judgmentproceeding, but must present some evidence to support each element of the cause of action. Rossv. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1069 (2003). We review grants of summary judgmentde novo. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001). A grant of summary judgment may beaffirmed on any ground supported by the record, even if that ground was not relied on by the trialcourt. Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill. App. 3d 969, 971 (2002),citing Leonardi v. Loyola University, 168 Ill. 2d 83, 97 (1995).

To state a cause of action for negligence, a plaintiff must demonstrate that the defendantowed a duty of care to the plaintiff, that the defendant breached the duty, and that an injury wasproximately caused by the breach. Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414,421 (2004). On appeal, plaintiff contends that the trial court erred in finding that she failed toestablish the existence of a duty. She argues that, due to her visual handicap, the defect in thesidewalk was not open and obvious and that, due to the general condition of the sidewalk, she didnot see the specific rock upon which she tripped until after she fell. She further argues that theCity 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 , 208Ill. 2d at 422.

Ordinarily, parties who own, occupy, control, or maintain land are not required to foreseeand protect against injuries from potentially dangerous conditions that are open and obvious. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-48 (1996). The term " '[o]bvious'denotes that 'both the condition and the risk are apparent to and would be recognized by areasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, andjudgment.' " Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435 (1990), quotingRestatement (Second) of Torts