Find Legal Information

PRESIDING JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, Helga Belluomini, sued defendant, Stratford Green Condominium Association, forinjuries sustained when she tripped over a bicycle that was located on defendant's property. The trialcourt granted defendant's motion for summary judgment. The trial court found that defendant owedno duty to plaintiff because the bicycle was an open and obvious condition and that the distractionexception to the rule that no duty is owed for open and obvious conditions did not apply. Plaintiffappeals. We affirm.

In her amended complaint, plaintiff alleges that she sustained serious injuries when she trippedand fell over a bicycle that was located in the common area of a condominium complex that wasowned and operated by defendant. Plaintiff alleges that defendant was negligent because it did notremove the bicycle from the common area, because it failed to demand that the owners of the bicycleremove it from the common area, and because it permitted the owners of the bicycle to store thebicycle in the common area. Plaintiff also sued various members of the family that allegedly ownedthe bicycle; however, this appeal does not concern that portion of the suit.

On July 25, 2002, defendant filed a motion for summary judgment, contending that there wasno genuine issue of material fact. Specifically, defendant contended that plaintiff's discoverydeposition showed that the bicycle was an open and obvious condition and that plaintiff was notdistracted. Thus, according to defendant, it owed no duty to plaintiff.

In her discovery deposition, plaintiff described the circumstances of her accident. On March13, 1998, at approximately 3:45 p.m., plaintiff was leaving her apartment for work. Plaintiff carrieda medium-sized purse in her right hand. Plaintiff moved from the hallway outside her apartment intothe entryway of the building by opening a door. The entryway of the building contained a child'sbicycle that was chained to the railing of a staircase. Plaintiff noticed the bicycle when she openedthe door to the entryway. The bicycle was chained in a standing position. Plaintiff testified that therear wheel of the bicycle protruded out from the railing "over a foot." We note that, while plaintiff'stestimony about the location of the rear wheel of the bicycle comes directly after her statement thatshe saw the bicycle immediately upon opening the door to the entryway of the building, she does notexplicitly state that she noticed the location of the rear wheel of the bicycle before the accident. Plaintiff testified that as she proceeded toward the exit, she was looking at the outside door of thebuilding and not the bicycle. Plaintiff did not recall how many steps she took before coming intocontact with the bicycle. Plaintiff fell when the rear wheel of the bicycle came into contact with herthighs. Plaintiff sustained injuries to her left hand as a result of the fall.

One of the issues in this case is whether there is evidence that plaintiff was distracted whenshe tripped over the bicycle, because she was carrying a garbage or laundry bag. Mary Bruce,plaintiff's property manager at the time of the accident, testified that, upon her arrival at the scene ofthe accident, she observed the bicycle and a dark bag containing garbage or laundry in the entrywayof the building. According to Bruce, plaintiff told her that she had been carrying the bag. Brucerecalled picking up the bag and taking it to plaintiff's apartment. Plaintiff, however, specificallycontradicted this testimony. She stated in her deposition that she was not carrying a garbage bag atthe time of her injury and that she never told anyone that she was carrying a garbage bag. Plaintifftestified that she carried only a medium-sized purse at the time of her injury. According to plaintiff,the purse did not obstruct her vision.

On October 2, 2002, the trial court granted defendant's motion for summary judgment withprejudice. In doing so, the trial court specifically noted that the bicycle was an open and obviouscondition and that there was no competent evidence that plaintiff was distracted. Plaintiff timelyappeals.

On appeal, plaintiff contends that the trial court erred in finding, as a matter of law, that thebicycle was an open and obvious condition and that the distraction exception to the rule that thereis no duty of care for an open and obvious condition did not apply. We review de novo a trial court'sgrant of summary judgment. Buchaklian v. Lake County Family Young Men's Christian Ass'n, 314Ill. App. 3d 195, 199 (2000). Summary judgment is appropriate where the pleadings, affidavits,depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party,show that there is no genuine issue of material fact and that the moving party is entitled to judgmentas a matter of law. Buchaklian, 314 Ill. App. 3d at 199.

The issue in this case is whether the trial court erred in finding as a matter of law thatdefendant owed no legal duty to plaintiff. If defendant owed no duty, there will be no liability,because a legal duty is a prerequisite to liability. Bucheleres v. Chicago Park District, 171 Ill. 2d 435,447 (1996).

In Illinois, factors that are relevant to the determination of duty include: (1) the likelihood ofinjury; (2) the reasonable foreseeability of injury; (3) the magnitude of the burden of guarding againstinjury; and (4) the consequences of placing that burden on the defendant. Bucheleres, 171 Ill. 2d at456.

Plaintiff phrases her argument in terms of the open and obvious doctrine which, as will beexplained, is closely related to the four-factor test described above. Under the open and obviousdoctrine, " '[a] possessor of land is not liable to his invitees for physical harm caused to them by anyactivity or condition on the land whose danger is known or obvious to them, unless the possessorshould anticipate the harm despite such knowledge or obviousness.' " Deibert v. Bauer BrothersConstruction Co., Inc., 141 Ill. 2d 430, 435 (1990), quoting Restatement (Second) of Torts,