Felicity Miller Jones v. State of Illinois

ORDER

BURNS, J.

This cause coming before the Court on the Respondent’s Motion for Summary Judgment and the Court being fully advised, finds as follows:

INTRODUCTION

This is a case involving a trip-and-fall on state property. The First Amended Verified Complaint at Law (hereafter “Amended Complaint”) alleges that on Saturday, February 5, 2011, Claimant was visiting Menard Correctional Center (“Menard”). (Amended Complaint, ¶ 2.) While exiting a building known as “Electric Eye,” Claimant tripped on the “lip” of the exit ramp and fell from the ramp’s drop-off. (Amended Complaint, ¶¶ 4, 5.) The Amended Complaint alleges that the exit ramp failed to meet required structural standards and codes. (Amended Complaint, ¶ 4.) No specific “required structural standards and codes” are set forth. The fall resulted in a c-fracture to her right arm. (Amended Complaint, ¶ 6.) The Bill of Particulars attached to the Amended Complaint states that Claimant incurred medical bills in the amount of $15,348.28.

On September 13, 2012, the Respondent filed its Answer and Affirmative Defenses to the Amended Complaint. Pursuant to §790.100, Respondent entered a general denial of the allegations set forth in the First Amended Complaint. The Affirmative Defenses are summarized as follows: (1) the Claimant was guilty of negligent conduct which proximately contributed to cause the damages; (2) the Respondent did not have actual or constructive notice that a dangerous condition existed; (3) the condition of the exit ramp was open and obvious; (4) Claimant failed to exhaust her administrative remedies.

Claimant’s Response to Respondent’s Affirmative Defenses pleads that where a Claimant is reasonably distracted, there is an exception to the normal rule regarding open and obvious dangers. (Response to Respondent’s Affirmative Defenses, ¶ 4.) Claimant cites to Ward v. K Mart Corp., 136 Ill. 2d 132 (1990), which held that a defendant landowner in a negligence suit could be expected, under certain circumstances, to anticipate that customers even in the general exercise of reasonable care will be distracted or momentarily forgetful. In Ward, the customer [*161] left K Mart carrying a large bathroom mirror he had purchased from K Mart and walked into a pole. The reasonable distraction doctrine was held to apply.

On July 10, 2014, Respondent filed Respondent’s Motion for Summary Judgment with supporting Memorandum. Respondent’s Motion makes the following arguments: (1) the ramp lip was an open and obvious condition for which no duty was owed to Claimant; (2) Claimant cannot establish that Respondent had actual or constructive knowledge that the ramp lip constituted a dangerous condition; (3) Claimant’s own contributory negligence was the proximate cause of her injuries.

Respondent attached to its Motion for Summary Judgment exhibits containing the deposition testimony of the Claimant and an affidavit from Steve Wallace, the Stationary Engineer Chief for Menard.

In her deposition, Claimant testified that prior to February 5, 2011, she had been visiting a friend at Menard five times a month for the previous seven months. Claimant stated that prior to this incident, Claimant did not have any problems walking up or down the ramp. Claimant did not witness any maintenance or construction to the ramp during her visits and prior to the incident. Claimant was aware that the ramp had a lip on it.

Claimant also testified that on February 5, 2011, she was exiting the Menard facility when a fellow visitor started talking with her. Claimant testified that, ordinarily, she exits alone, but on this date she exited with a fellow visitor who started telling a story. Claimant walked ahead of the fellow visitor, walking through the door first and holding the door for the fellow visitor. Claimant recalled walking away from the door, attempting to put some distance between herself and the fellow visitor because the visitor was a “close-talker.” Claimant recalled that the side of her boot came into contact with the ramp lip which caused her to fall toward the window sill located opposite the door. Claimant testified that she used her right hand to brace her fall. Later, it was determined that Claimant had suffered a fractured arm.

Steve Wallace, the Menard Station Engineer, testified in his affidavit that he is responsible for maintenance issues and concerns at the facility. He testified that the ramp and the lip were installed in 2007. He testified that prior to February 5, 2011, Menard did not receive any complaints or concerns regarding the ramp lip. Prior to February 5, 2011, there were no incidents or injuries as a result of the ramp lip.

Claimant filed her Memorandum of Law Against Respondent’s Motion for Summary Judgment. The Claimant’s arguments in reply were as follows:

(I) The slight burden on the Respondent to guard against the type of harm at issue here

created a duty for the Claimant to provide a safe means of ingress and egress

(A) The risk that a person exercising reasonable care would trip over the wooden

block curb was reasonably foreseeable.

(B) The Respondent’s burden of guarding against the harm that has befallen the

Claimant is slight.

[*162] (C) The consequences of placing the burden of guarding against a tripping hazard on

the Respondent are small.

(II) The Claimant was reasonably distracted when she tripped over the wooden block

curb.

(III) Because the Respondent created the dangerous condition it should be deemed as

having notice.

(IV) Claimant’s comparative negligence was less than 50%.

ANALYSIS

Summary judgment is properly granted where the pleadings, depositions, admission on file and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Freeman v. State, 55 Ill. Ct. Cl. 329, 334 (2003); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (1992); Mobil Oil Corp. v. Maryland Casualty Co., 288 Ill. App. 3d 743 (1st Dist. 1997).

The Court notes that page 3 of Claimant’s Memorandum of Law Against Respondent’s Motion for Summary Judgment states: “Here, the Claimant may seek to introduce testimony and or witnesses not yet on record.” A statement that evidence may come to light at some later date will not bar summary judgment from being entered. See Lesnik v. Estate of Lesnik, 82 Ill. App. 3d 1102, 1106 (1st Dist. 1980) (Conclusions, unsupported by facts admissible in evidence, do not create a genuine material issue of fact).

The Court has reviewed the record and finds that there is no genuine issue of material fact in dispute that the ramp “lip,” or, more specifically, the wooden block curb that ran along the lip, was an open and obvious condition that was known to Claimant, and, therefore, no liability may attach to the Respondent.

The open and obvious rule states that a “possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them.” Bruns v. City of Centralia, 2014 IL 116998, ¶16 (Sept. 18, 2014) citing Restatement (Second) of Torts § 343A, at 218 (1965).

Whether a dangerous condition is open and obvious may present a question of fact. Id. at ¶18. But where no dispute exists as to the physical nature of the condition, whether the dangerous condition is open and obvious is a question of law. Id.

This Court has held that recovery cannot be had in a slip and fall situation if the danger was, or should have been, apparent to the claimant. Churn v. State, 65 Ill. Ct. Cl. 124, 125 (2012).

Here, the Claimant has testified that she was aware of the lip prior to her fall. A portion of the Claimant’s deposition is attached to the Respondent’s Memorandum. Page 29 states in relevant part as follows:

Q. When you walked out, you knew the lip was there, right?

[*163] A. Well, yeah, I knew that it was there definitely, but I had never exited with another

person, so, you know, that was something that was different for me. I had never

exited with another person because I have never gone in there with another

person. I don’t visit him with another person.

Claimant claims that she was reasonably distracted when she tripped over the wooden block curb. (Memorandum of Law Against Respondent’s Motion for Summary Judgment, p. 6.) Claimant cites to American Nat’l Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14, 29 (1992). In American Nat’l Bank, the Court found an exception to the open and obvious rule where the defendant landowner should have reasonably expected that a person would become distracted and fail to protect himself from a dangerous condition. Id. at 29.

Respondent relies on Sandoval v. City of Chicago, 357 Ill. App. 3d 1023 (1st Dist. 2005). Sandoval v. City of Chicago held that in regard to premises liability, when a plaintiff’s attention is diverted by his or her own independent acts for which the defendant has no direct responsibility, the distraction exception does not apply. Id. at 1031. Thus, the Court declined to impose liability on the defendant city where the plaintiff acknowledged she was aware of the open and obvious condition of the sidewalk that she tripped on, but had become distracted while attending to a small child that the plaintiff was baby-sitting. We find Sandoval to be more persuasive in this case.

Here, the Respondent was not responsible for the Claimant’s distraction. The lip was open and obvious, and, as established by her deposition testimony, known to the Claimant. We find no genuine issue of material fact remaining in this dispute.

Therefore, the Court will grant summary judgment in favor of the Respondent and against the Claimant.

IT IS HEREBY ORDERED that Respondent’s Motion for Summary Judgment is GRANTED and judgment is entered in favor of the Respondent as to the First Amended Verified Complaint at Law and against the Claimant.