In the recently concluded September term, the Illinois Supreme Court reaffirmed the “open-and-obvious peril” doctrine and gave needed definition to the “distraction” exception to that rule, unanimously reversing a decision of the Fifth District in Bruns v. The City of Centralia. Our detailed summary of the facts and lower court decisions in Bruns is here. Our report on the oral argument is here.
Bruns arose from an accident in the spring of 2012. The plaintiff, just days short of her eightieth birthday, arrived at an eye clinic for her appointment. She had been to the clinic nine times before. In front of the clinic, the sidewalk had cracked and become uneven in one stretch due to the effect of the roots of a nearby tree. Three years before, the clinic had offered to remove the tree at its own expense, but the City had denied permission due to the tree’s historic significance. The plaintiff had noticed the defect in the sidewalk during each previous visit, and believed she had noticed it on the day of the accident. But she was focused on the door of the clinic, and she fell. When the plaintiff sued the City, the City moved for summary judgment, arguing that the sidewalk defect was an open-and-obvious hazard as a matter of law. The Circuit Court granted summary judgment, but the Court of Appeal reversed, holding that the “distraction” exception – which reinstates the duty of care when a land owner or occupant should expect that the invitee’s attention will be distracted, and he or she will not perceive the risk, or will forget about it – potentially applied.
The Supreme Court unanimously reversed in an opinion by Justice Theis. Reviewing previous decisions applying the distraction exception, the Court concluded that it is not enough for the plaintiff to merely show that he or she was not focused on the risk. The Court held that for the exception to apply, the plaintiff must show that a foreseeable circumstance required him or her to focus attention elsewhere, and fail to notice (or forget about) the open-and-obvious risk. The plaintiff had shown, at most, that she was focused on the clinic door, the Court commented. She had not proven that she had to do so.
The Court noted that a finding of an open-and-obvious danger was not an automatic bar to finding that the defendant owed the plaintiff a duty of care. The doctrine merely goes to the first two steps in the standard four-factor test for duty (reasonable foreseeability of injury; likelihood of injury; burden of guarding against the injury; and consequences of placing that burden on defendant). Thus, the Court suggested that in an appropriate case, a duty could be found even with respect to an open-and-obvious risk. But in Bruns, the Court found no duty as a matter of law. Even though the burden of repairing the single stretch of sidewalk would presumably not be great, the Court emphasized the miles of sidewalk the City was responsible for, and concluded that the burden was unjustifiably great, given the nature of the risk.