Attacking duty by way of summary judgment wins the day in Illinois’ First District Court of Appeal, Fifth Division in James Foy v. The Village of La Grange, Illinois, 2020 IL App (1st) 191340. In Foy, plaintiff filed a negligence action against the Village of La Grange (“Village”) after he tripped and fell on a raised sidewalk slab, likely caused by tree roots underneath the sidewalk, sustaining injury. The Village filed a motion for summary judgment alleging they owed no duty for a de minimis condition, and, in the alternative, they owed no duty of care to Mr. Foy because the condition on the sidewalk was open and obvious. The trial court granted the motion for summary judgment on the grounds the condition was open and obvious, the risk of injury was minimal, and the Village had “miles and miles of sidewalk to maintain,” weighing in favor of a finding the Village did not owe plaintiff any duty.
On appeal, the Appellate Court agreed there was no genuine issue of material fact as to whether the sidewalk deviation was open and obvious. The Appellate Court, relying on Bruns v. City of Centralia, 2014 IL 116998, explained the Illinois Supreme Court has made clear that sidewalk defects may constitute open and obvious dangers. In this case, there was a dispute regarding the size of the sidewalk deviation; however, the Appellate Court held there was no dispute that an “apparent” sidewalk deviation, which any reasonable person could have seen, existed at the time of the incident.
In support of its determination the sidewalk defect was open and obvious, the Court cited to plaintiff’s deposition testimony, wherein he stated he would have seen the defect if he had been looking down at the sidewalk just prior to the fall. The Court then rejected plaintiff’s argument that no reasonable person would be looking straight down at the sidewalk while walking, reasoning, “sidewalk deviations are common and can be easily anticipated by the average pedestrian,” and the applicable standard is an objective one. In other words, it was irrelevant that plaintiff claimed he did not see the sidewalk defect until after his fall.
Finally, the Court analyzed each of the four factors of the duty analysis: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. (Bruns, supra.)
The Court held the first and second factors held little weight because (1) a defendant is ordinarily not required to foresee injury from a dangerous condition that is open and obvious, and (2) “it is assumed that persons encountering the potentially dangerous condition of the land will appreciate and avoid the risks, making the likelihood of injury slight.” (Sollami v. Eaton, 201 Ill. 2d , 17 (2002).)
With respect to the third and fourth factors, the Court of Appeal, like the trial court, recognized (1) the Village has “miles of sidewalk to maintain,” (2) it is well recognized that sidewalks form cracks and develop disruptions to the surface over time, (3) it is not possible for the Village to prevent tree roots and other forms of natural erosion from disrupting the many miles of sidewalks, and (4) requiring the Village to constantly inspect the sidewalks for such disruptions would create a huge burden. According to the Court, the imposition of this burden is not justified given the open and obvious nature of the defect. Accordingly, the Court affirmed the trial court’s order granting summary judgment in favor of the Village.
While this case does not create new law or resolve a conflict of law, it does provide a useful guide for applying both the open and obvious doctrine and duty analysis in common trip and fall negligence actions.
With respect to the “open and obvious” analysis, defense counsel should be sure to elicit testimony from plaintiff as to whether he or she would have seen the sidewalk or defect prior to the fall had he or she been looking, not just whether the plaintiff actually did see the defect. Plaintiff’s testimony in Foy indicating he would have seen the defect if he was looking straight down at the sidewalk proved fatal to his case.