Appeals court address “open and obvious”

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz

“It would be impossible for the City to render the streets injury-proof.” This was the dictum recently handed down in the Illinois Appellate Court case of Ballog v. The City of Chicago 2012 IL App (1st) 112429. The case involved an appeal of the circuit court’s decision to grant the defendant summary judgment. The plaintiff argued that summary judgment was precluded on the basis that the condition which caused the plaintiff’s injury was not open and obvious and, even if it was open and obvious, the deliberate encounter exception applied.

The plaintiff sustained a fall and subsequent injury when crossing at the intersection of a newly-resurfaced street. The plaintiff was walking to attend a church service when the incident occurred. The plaintiff sustained the fall as a result of a gap of two inches that had been left between the newly-finished surface of the street and the beginning of the sidewalk. Construction at this location had been ongoing for six months and the plaintiff testified that during the construction, she would walk in the middle of the street instead of using the crosswalk at the intersection. On the date of the occurrence, there were no signs warning of construction. Plaintiff stated that she could not see the gap as she entered the intersection because the elevated center of the street obscured her view of the other side. However, the plaintiff had to cross a similar gap on the surface of the street at the corner where she began her walk across the intersection.

The appellate court discussed the open and obvious doctrine first. It was established through evidence that there was no dispute as to the physical nature of the condition of the crossing. The court stated that in such circumstances “whether a danger is open and obvious is a question of law.” The court also stated that the city can reasonably expect pedestrians will exercise reasonable care for their own safety upon confronting an open and obvious condition, making it unnecessary for the city to take additional precautions for the benefit of pedestrians.

The plaintiff relied on a number of cases in her assertion that the danger was not open and obvious. The court quickly distinguished said cases. The first two cases were distinguished on the basis that expert testimony was presented to raise the question of a factual issue, however, no such expert testimony was presented in the instant case. Another case was distinguished on the basis that there was a dispute as to the physical condition of the site of the occurrence. The court was influenced by the fact that the plaintiff safely traversed the same defect on the corner where she began to cross the street. The court ruled that she could then reasonably expect the same condition to exist at the other side of the cross walk.

This case is a useful example of the court’s interpretation of the extent of the duty on pedestrians to exercise reasonable care for their own safety when traversing an “open and obvious” condition.

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