Supreme Court Clarifies Distraction Rule

November 2014

By Andrew R. Makauskas

Bruns v. The City of Centralia, 2014 IL 116998, involved a defective sidewalk condition that was "open and obvious" and an argument by the Plaintiff that the distraction exception to the open and obvious rule applied. The plaintiff, Virginia Bruns, 79 years old at the time of the incident, parked her vehicle in front of her eye clinic in Centralia, Illinois. While walking toward the clinic, she stubbed her toe on a crack in the sidewalk, causing her to fall and sustain injuries. At the time of the fall, the plaintiff was looking "toward the door and the steps" of the clinic. She was previously aware of the defect in the sidewalk, which she noticed every time she went to the clinic. She testified that she had been to the eye clinic nine times during the preceding three months.

The defect had developed because roots from a nearby tree had caused the sidewalk to crack and become uneven. In 2009, an employee of the eye clinic had contacted the City of Centralia about the defect and offered to remove the tree at the clinic's expense. The City would not authorize removal because of the 100-year-old tree's historic significance. Again, in 2009, a clinic employee contacted the City after learning that someone had tripped and fallen on the sidewalk.

In this case, the parties agreed the defect in question was open and obvious as a matter of law. Generally, under the open and obvious rule, a party who owns or controls land is not required to foresee and protect against an injury because of a potentially dangerous condition that is open and obvious. Rexroad v. City of Springfield, 207 Ill.2d 33, 44 (2003). However, Illinois law recognizes two exceptions to the open and obvious rule: the "distraction exception" and the "deliberate encounter exception". Sollami v. Eaton, 201 Ill.2d 1, 15 (2002). The distraction exception applies "where the possessor (of land) has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or forget what he has discovered, or fail to protect himself against it." Sollami, 201 Ill.2d at 15 (quoting Restatement (Second) of Torts §343A cmt. f at 220 (1965)).

The Circuit Court granted the City's Motion for Summary Judgment, finding the sidewalk defect open and obvious as a matter of law and rejecting plaintiff's argument that the distraction exception applied. The trial court stated that if it followed plaintiff's argument, "the mere existence of an entrance, and/or steps leading up to it, would provide a universal distraction exception to the open and obvious doctrine."

The Appellate Court reversed, finding the distraction exception applied. The court focused on the foreseeability of the likelihood that an individual's attention may be distracted from the open and obvious condition. The court found that it was reasonable to foresee that an elderly patron of an eye clinic might have his or her attention focused on the pathway forward to the door and steps to the clinic as opposed to the path immediately underfoot. The court found the City had a duty to remedy the sidewalk defect in a reasonable timeframe. The question of whether the City had breached this duty was a fact question for the jury.

The Supreme Court reversed. It noted that the plaintiff had failed to identify any circumstance, much less a circumstance that was reasonably foreseeable by the City, which would require her to divert her attention from the open and obvious sidewalk defect or otherwise prevent her from avoiding the sidewalk defect. The issue was not whether the plaintiff was looking elsewhere, but why she was looking elsewhere. To the extent that looking elsewhere could itself be deemed a distraction, then it is at most a self-made distraction. Citing Whittleman v. Olin Corp., 358 Ill.App. 3d 813, 817-818 (2005), it noted as follows:

"A plaintiff should not be allowed to recover for self-created distractions that a defendant could never reasonably foresee. In order for the distraction to be foreseeable to defendant so that the defendant can take reasonable steps to prevent injuries to invitees, the distraction should not be solely within the plaintiff's own creation. The law cannot require possessors of land to anticipate and protect against a situation that will only occur in the distracted mind of his invitee."

Finding that there was no exception to the open and obvious rule, the Supreme Court still needed to analyze whether or not the City had a duty to the plaintiff. It considered the four factors involved in 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.

Sollami, 200 Ill.App.2d at 17.

The court noted that under the first factor, the defendant is ordinarily not required to foresee injury from a dangerous condition that is open and obvious. Under the second factor, it is assumed that persons encountering the potentially dangerous condition of land will appreciate and avoid the risk, making the likelihood of injury slight. As to the remaining factors, although it did not know how much it would cost to repair this stretch of sidewalk, the Court found the consequences of imposing the burden on the City would go well beyond that particular defect, as the City had miles of sidewalk to maintain. The Court held that the imposition of this burden was not justified, given the open and obvious nature of the risk involved in this case. Thus, the Supreme Court found the City had no duty to protect the plaintiff from the open and obvious sidewalk defect. The Appellate Court decision was reversed and the summary judgment that had been granted by the trial court was affirmed.