2021 IL App (2d) 200660-U No. 2-20-0660 Order filed July 22, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
JAIME CONDER, ) Appeal from the Circuit Court ) of Winnebago County. Plaintiff-Appellant, ) ) v. ) No. 17-L-225 ) REALINGTON ENTERPRISES, LLC, d/b/a ) STATELINE RENTAL PROPERTIES; ) REALINGTON ENTERPRISES, LLC-NEXT; ) STATELINE RENTAL PROPERTIES- ) REALINGTON ENTERPRISES, LLC, ) ) Defendants ) ) Honorable (Realington Enterprises, LLC-Next, ) Donna R. Honzel, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court. Justices Hudson and Birkett concurred in the judgment.
ORDER
¶1 Held: The trial court properly granted summary judgment in the landowner’s favor where there was no genuine issue of material fact with respect to (1) the open and obvious hazardous condition of the driveway upon which plaintiff fell or (2) the inapplicability of the distraction exception to the open-and-obvious doctrine. Affirmed. 2021 IL App (2d) 200660-U
¶2 Plaintiff, Jaime Conder, appeals from the trial court’s order granting summary judgment in
favor of defendant, Realington Enterprises, LLC-Next (Realington) in this premises liability
action. For the reasons set forth below, we affirm.
¶3 I. BACKGROUND
¶4 The following is derived from the pleadings, depositions, and documents on file.
¶5 A. The Incident
¶6 Plaintiff was injured when she tripped and fell after stepping into a pothole in the driveway
for the apartment building located at 3024 Jacqueline Court in Rockford. The operative complaint
(the first amended complaint) alleged that the pothole created an uneven and jagged surface that
was unnoticed by plaintiff. According to the first amended complaint, the incident occurred “on or
around August 14, 2015.” However, it was unclear from plaintiff’s deposition testimony whether
the incident occurred on August 13, 2015, or August 14, 2015, although the distinction is
ultimately immaterial.
¶7 The apartment building at 3024 Jacqueline Court is part of a four-building apartment
complex on Jacqueline Court. Three driveways, connected by a cul-de-sac, service the four
apartment buildings and each driveway leads to parking lots for the respective buildings. Upon
entry to the cul-de-sac, the driveway to the left is the driveway leading to the 3024 Jacqueline
Court apartment building. The apartment building is at the top of the hill on which the driveway
is situated.
¶8 Realington owned the Jacqueline Court apartment complex at the time of the incident,
having purchased the complex in June 2015 (two months before the incident). Stateline Rental
Properties-Realington Enterprises, LLC (Stateline), a real estate management company, managed
the complex for Realington at the time of the incident, and also had managed it for at least two
-2- 2021 IL App (2d) 200660-U
years before the incident pursuant to a property management contract with the prior owners. Rick
Davis, Realington’s operating manager, has an ownership interest in both Realington and Stateline.
¶9 Plaintiff was an independent contractor for Stateline at the time of the incident and had
been so since approximately 2010 or 2011. As part of her duties, she worked with landlords to
review management agreements, inspect units prior to leasing, maintain and inspect rental
properties, serve eviction notices, and provide cleaning services. She had performed these duties
at the Jacqueline Court apartment complex for at least two years prior to the date of the incident.
¶ 10 On the date of the incident, plaintiff met off-duty Belvidere police officer David Dammon
at the Jacqueline Court apartment complex. Dammon performed private security services for
Stateline. The impetus for the meeting was a concern regarding illegal drugs on the premises.
Plaintiff parked in the cul-de-sac. Plaintiff testified that it was “late afternoon, maybe early
evening” and that it was “daylight” and “sunny” at the time. Plaintiff had glasses and was wearing
them at the time, and nothing obstructed her vision.
¶ 11 Plaintiff and Dammon first went to the apartment building at 3027 Jacqueline Court (the
location of a suspected drug dealer), which is to the right upon entry to the cul-de-sac. From there,
they walked across the lawn to the two center buildings (which shared one of the three driveways)
so that Dammon could view the entire property. They proceeded across the grass to the apartment
building at 3024 Jacqueline Court.
¶ 12 At this point, they walked down the 3024 Jacqueline Court driveway toward the cul-de-
sac, with plaintiff to the “left-center” of the driveway and Dammon to her right. Plaintiff and
Dammon were conversing as they walked. They were approximately “mid to two-thirds of the way
up the drive if you were coming in from the bottom of Jacqueline Court” when the incident
occurred. Plaintiff testified: “I was walking down the driveway, talking with Dave, and there was
-3- 2021 IL App (2d) 200660-U
an apparent hole that was filled in with crushed asphalt. And a section of that was missing, and I
caught it with the front of my foot.” She was wearing flip flops at the time, and the flip flop came
off her foot. Plaintiff testified that she was looking at Dammon and did not see the defect in the
pavement before she fell. She stated that she typically does not look at the placement of her feet
while walking. Dammon unsuccessfully attempted to grab plaintiff’s arm as she was falling.
¶ 13 Plaintiff further testified that, at the time of the incident, she was not doing anything that
drew her attention away from where she was walking. Rather, she “was just talking to [Dammon].”
Moreover, she stated that her view of the ground was unobstructed, she was not looking at a cell
phone or reading documents, and the sun was neither in her eyes nor caused her to have any trouble
with her vision. Plaintiff testified that, after she fell, she walked through the adjacent grass down
to her car in the cul-de-sac and proceeded to seek medical treatment for her left ankle.
¶ 14 Plaintiff estimated that the hole filled with crushed asphalt was 8 and one-half inches wide
and 11 inches long. Plaintiff explained that, while the hole had been filled in with crushed asphalt,
there was a “gap” in the filling where “maybe the rain had washed” some of the crushed asphalt
away. She estimated that the gap was 6 inches wide, 3 inches long, and 2 and one-half inches deep.
Plaintiff testified regarding her knowledge that Davis “had dumped some crushed asphalt in there”
and that she was “in [Davis’s] office when he gave the direction to Brian Kern to get it ordered.”
Kern was the maintenance manager for the properties that Stateline managed, including the
Jacqueline Court apartment complex. Plaintiff did not know the precise date that crushed asphalt
was put there but testified that, “I know that he dumped it. So when we were out there prior, there
was crushed asphalt.” She further testified that she observed the crushed asphalt on the driveway
at some point between May 2015 and August 2015.
-4- 2021 IL App (2d) 200660-U
¶ 15 Plaintiff testified that, had she been looking at her feet while walking down the driveway,
she did not know whether she would have seen the defect. According to plaintiff, “the crushed
asphalt blends with the old asphalt” and thus “it just kind of blends together.” Nevertheless,
plaintiff testified, when she sat down after falling, she observed the defect. She also testified that,
if Davis had been at 3024 Jacqueline Court, “he would see that there were problems on the
driveway, yes.” She believed that the entire driveway needed attention. When questioned as to
“[w]hat would have prevented [her] from seeing that hole before [she] stepped into it if [she] could
see it when [she was] standing over it,” plaintiff responded: “[t]he gravel that was on the ground.”
¶ 16 Plaintiff testified that, in the course of her duties as an independent contractor for Stateline,
she previously had been to 3024 Jacqueline Court. She acknowledged that, prior to the date of the
incident, she “probably” had walked either up or down the driveway to 3024 Jacqueline Court but
was not certain. Specifically, plaintiff testified: “I don’t know. I walked these properties all the
time. So I walked all the properties all the time. So to say have I ever walked up and down it [the
driveway to 3024 Jacqueline Court], probably.” Plaintiff further testified that she had traversed the
3024 Jacqueline Court driveway by foot or car “no more than 20” times before the incident, with
“five or less” trips across the driveway by foot. Plaintiff explained that she parked in the cul-de-
sac and walked up and down the driveway when the nature of the business required a relatively
longer stay. If she were there merely to serve a “five-day notice” or speak to a tenant, then she
would drive her car up and down the driveway to the apartment building. The evidence established
that plaintiff cleaned apartments at 3024 Jacqueline Court on seven occasions between July 2014
and August 2015, including cleanings on July 30, 2015, and August 10, 2015.
¶ 17 Plaintiff acknowledged that she had walked on the 3024 Jacqueline Court driveway within
30 to 40 days before the incident. However, she testified that she had been there at night for a
-5- 2021 IL App (2d) 200660-U
medical issue at the building and that it was dark outside. Nevertheless, she had a flashlight, and
the driveway was illuminated by the headlights of an ambulance in the cul-de-sac.
¶ 18 Dammon testified that, after plaintiff tripped, he helped her up and to her car. He had been
at 3024 Jacqueline Court to serve process in the month or two before the incident and testified that
the driveway was crumbling or broken up in various spots and in the same condition as it was on
the day of the incident. He agreed that the driveway had a lot of “spider cracks,” some holes, some
depressions, and some divots in various areas of its length. He stated that much of the driveway
surface was cracked and broken and that there were other areas of the driveway besides where
plaintiff fell that were in disrepair with broken and crumbling asphalt, although he did not expect
a “divot” as deep as the divot into which plaintiff fell. He stated that the divot did not stand out
and that he did not see the divot before the fall. However, he testified, “[y]ou could see that the
drive was broken going down,” that it was “all spider cracked,” and that “[s]ome of them [(the
“divots” or “broken concrete”)] were bigger than others.” He further agreed that the deteriorated
condition of the driveway was open and obvious to anyone who observed it.
¶ 19 In response to interrogatories requesting a detailed description of the defect that caused her
injury and any photographs of the location of the incident, plaintiff produced 10 photographs. She
did not identify the date that the photographs were taken. The photographs were introduced as
exhibits at plaintiff’s deposition. Plaintiff testified that she took the photographs with her cell
phone in May 2016—approximately nine months after the August 2015 incident. Plaintiff
identified Exhibit 6A as the photograph depicting the general location of the subject defect, circled
and initialed the general location of her fall, and drew a smaller circle therein with a line pointing
to the specific defect that caused her fall. However, plaintiff testified that the defect in the area that
-6- 2021 IL App (2d) 200660-U
she circled was “wider” in the photograph than it was on the day of the incident in August 2015
and that the driveway had more holes at the time of the photograph.
¶ 20 Davis testified that he was aware of several defects in the driveway at the time Realington
purchased the property in June 2015. He stated that the condition of the driveway in the photograph
looked substantially similar to the condition of the driveway at the time of the purchase. Kern, the
maintenance manager, testified that the defects in the driveway existed at the time Realington
purchased the property and that the photograph was generally reflective of the condition of the
driveway at the time of the incident. Kern further testified that the condition of the driveway, with
its the spider cracks and fissures, was open and obvious to anyone looking at the pavement.
¶ 21 B. Procedural History
¶ 22 Plaintiff filed her initial complaint on July 21, 2017, but subsequently was granted leave to
filed an amended complaint. The first amended complaint alleged premises liability against
Realington; Stateline; and Realington Enterprises, LLC, doing business as Stateline Rental
Properties. The latter two entities were dismissed with prejudice, leaving Realington as the sole
defendant. Plaintiff alleged that Realington was negligent in failing to inspect and maintain the
driveway in a safe condition by “allowing said surface to remain jagged and uneven” and in failing
to warn of an unreasonably dangerous condition on the driveway. Realington answered, denying
the substantive allegations, and raised the affirmative defense of contributory negligence.
¶ 23 1. Summary Judgment Motion
¶ 24 Following the close of non-medical fact discovery, Realington moved for summary
judgment. Realington argued that the deteriorated condition of the 3024 Jacqueline Court driveway
was an open and obvious condition about which it had no duty to warn and that plaintiff’s
comparative fault barred her recovery as a matter of law. In her response in opposition to summary
-7- 2021 IL App (2d) 200660-U
judgment, plaintiff argued that there was a genuine issue of material fact regarding the open and
obvious condition of the particular defect that caused her fall. Plaintiff distinguished the “spider
cracks” or “loose gravel” on the driveway (which she characterized as arguably de minimis in
nature and therefore not actionable) from the “divot” or “hole” that caused her fall. Plaintiff also
argued that, even if the defect were open and obvious, there was a genuine issue of material fact
as to whether Realington nonetheless owed her a duty under the distraction exception to the open-
and-obvious doctrine. Plaintiff did not respond to Realington’s argument that her comparative fault
barred recovery.
¶ 25 The trial court heard oral argument on Realington’s summary judgment motion on
September 9, 2020, and took the matter under advisement. 1
¶ 26 2. Trial Court’s Ruling
¶ 27 On October 16, 2020, the trial court issued a memorandum of decision and order, granting
summary judgment in Realington’s favor. The trial court found no genuine issue of material fact
with respect to the open and obvious condition of the 3024 Jacqueline Court driveway.
Specifically, the evidence established that the driveway “had a decline in the direction plaintiff
was walking, was clearly in need of repair, had spider cracks, crumbling asphalt, depressions,
divots, and some holes filled in with crushed asphalt/gravel.” The trial court noted plaintiff’s
agreement that someone looking at the driveway could see several defects other than the one where
she fell, that there were obvious defects in the drive, and that Davis would have been able to see
several holes if he had looked at the driveway. The trial court also noted Dammon’s agreement
1 The record on appeal does not include a report of proceedings from the September 9,
2020, hearing.
-8- 2021 IL App (2d) 200660-U
regarding the driveway’s state of disrepair. Nevertheless, the trial court reasoned, plaintiff testified
that she neither looked where she was walking nor changed her route to avoid the holes. The trial
court also pointed out plaintiff’s awareness of the driveway’s condition and of Realington’s use of
crushed asphalt to fill the holes.
¶ 28 Moreover, the trial court found no genuine issue of material fact with respect to the
inapplicability of the distraction exception to the open-and-obvious doctrine. The trial court
reasoned that nothing required plaintiff to be looking at Dammon while talking and walking.
Rather, “choosing to look at Dammon and not looking at the path she was traversing, even though
that was her habit, was completely her own independent act and one which was not foreseeable to
[Realington] and not created by [Realington].”
¶ 29 In addition to its determination that the open-and-obvious doctrine applied without
exception as a matter of law, the trial court further found that the burden to continuously guard
against the alleged erosion of the crushed asphalt/gravel and of someone tripping and falling on
the driveway “would likely be great and the consequences of doing so likely time-consuming and
expensive just as a matter of common sense.” Accordingly, the trial court held that Realington did
not owe plaintiff a duty of care as a matter of law.
¶ 30 Plaintiff timely appealed.
¶ 31 II. ANALYSIS
¶ 32 Summary judgment is proper when “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
2020). “The purpose of summary judgment is not to try a question of fact, but rather to determine
whether a genuine question of material fact exists.” Bagent v. Blessing Care Corp., 224 Ill. 2d 154,
-9- 2021 IL App (2d) 200660-U
162 (2007). In determining whether there is a genuine issue of material fact, the pleadings,
depositions, admissions, and affidavits must be construed strictly against the movant and liberally
in favor of the opponent. Id. A triable issue of fact exists where there is a dispute as to a material
fact or where, although the material facts are not in dispute, reasonable minds might differ in
drawing inferences from those facts. Id. at 162-63. Summary judgment should be allowed only
where the movant’s right to judgment is “clear and free from doubt.” Id. at 163. We review
summary judgment rulings de novo. Id.
¶ 33 With these concepts in mind, we turn to plaintiff’s arguments on appeal. Plaintiff contends
that the trial court improperly focused on the general condition of the 3024 Jacqueline Court
driveway, rather than the condition of the particular defect on which she tripped, in applying the
open-and-obvious doctrine. According to plaintiff, there was a genuine issue of material fact
regarding the visibility of the particular defect. Plaintiff also contends that there was a genuine
issue of material fact as to whether she was distracted at the time of the incident.
¶ 34 Realington responds that the alleged defect was open and obvious as a matter of law and
that there was no evidence that plaintiff was distracted at the time of the incident. Realington also
contends that it owed no duty to plaintiff because the alleged defect was de minimis and that
plaintiff’s comparative negligence barred recovery as a matter of law. As set forth below, we hold
that the trial court properly granted summary judgment in Realington’s favor on the basis that the
open-and-obvious doctrine applied without exception as a matter of law. We therefore need not
address Realington’s other arguments.
¶ 35 A. Open and Obvious Condition
¶ 36 To sustain her negligence action, plaintiff was required to present sufficient factual
evidence to establish that Realington owed her a duty of care, that Realington breached that duty,
- 10 - 2021 IL App (2d) 200660-U
and that the breach proximately caused her injury. Lee v. Lee, 2019 IL App (2d) 180923, ¶ 13.
There can be no liability if there is no legal duty. Id. The existence of a duty is a question of law
and involves consideration of whether a relationship existed between the parties such that a legal
obligation is placed upon one party for the other party’s benefit. Id. The following four factors
guide this consideration: (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. Id. ¶ 14.
¶ 37 In a premises liability action, the foreseeability of the injury is determined with reference
to section 343 of the Restatement (Second) of Torts. Rozowicz v. C3 Presents, LLC, 2017 IL App
(1st) 161177, ¶ 14 (citing Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468 (1976)). Section 343
provides:
“A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”
Restatement (Second) of Torts § 343 (1965). 2
2 An “invitee” is either a “public invitee” or a “business visitor” as defined in section 332
of the Restatement (Second) of Torts (1965). There was no dispute that plaintiff was a “business
visitor.”
- 11 - 2021 IL App (2d) 200660-U
¶ 38 However, section 343A(1) sets forth the “open-and-obvious” exception to the duty of care
articulated in section 343, as follows: “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, unless the possessor should anticipate the harm despite such knowledge or obviousness.”
Id. § 343A(1); Ward v. K Mart Corp., 136 Ill. 2d 132, 149 (1990). The determination of whether
a condition is open and obvious is an objective test. Wilfong v. L.J. Dodd Construction, 401 Ill.
App. 3d 1044, 1052 (2010). The possessor of land does not owe a duty of care to invitees when a
condition is open and obvious because the possessor “could not reasonably be expected to
anticipate that people will fail to protect themselves from any danger posed by the condition.”
Ward, 136 Ill. 2d at 148.
¶ 39 “ ‘Known’ ” for purposes of the open-and-obvious doctrine means “ ‘not only knowledge
of the existence of the condition or activity itself, but also appreciation of the danger it involves.’
” Peters v. R. Carlson & Sons, Inc., 2016 IL App (1st) 153539, ¶ 15 (quoting Restatement (Second)
of Torts § 343A cmt. b (1965)). “ ‘[O]bvious’ ” means that “ ‘both the condition and the risk are
apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising
ordinary perception, intelligence, and judgment.’ ” Bruns v. City of Centralia, 2014 IL 116998, ¶
16 (quoting Restatement (Second) of Torts § 343A cmt. b (1965)). Where the physical nature of a
dangerous condition is not disputed, the determination of whether the dangerous condition is open
and obvious is a question of law. Id. ¶ 18; Nida v. Spurgeon, 2013 IL App (4th) 130136, ¶ 50.
¶ 40 Here, plaintiff argues that there was a factual dispute regarding the condition of the
driveway and the visibility of the particular defect on which she fell. According to plaintiff, it was
disputed whether the photograph in Exhibit 6A, taken approximately nine months after the
incident, accurately depicted the defect that caused her fall. Namely, plaintiff testified that the hole
- 12 - 2021 IL App (2d) 200660-U
was wider in the photograph than it was on the day of the incident and that the photograph reflected
more holes in the driveway than were present on the date of the incident.
¶ 41 Realington responds there was no factual dispute regarding the condition of the defect or
driveway because plaintiff judicially admitted that Exhibit 6A accurately depicted the condition
by producing the photograph (as well as other photographs of the driveway) in her sworn response
to an interrogatory request for a detailed description of the defect that caused her injury. See
Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475, 480 (1987) (“A judicial admission is a
deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s peculiar
knowledge.”). Realington likens this case to Hansen, in which the plaintiff testified during his
deposition that he fell as a result of rubber bumpers on the edge of a loading dock but later
attempted to change his answer to cite a different cause for his fall. Id. at 477-78. In affirming
summary judgment in the defendant’s favor, the appellate court noted that a party cannot create a
genuine issue of material fact by taking contradictory positions when convenient and held that the
plaintiff’s unequivocal statement in his deposition regarding the cause of his fall was a judicial
admission. Id. at 480-82.
¶ 42 Initially, we note that Realington argued for the first time in its reply in support of summary
judgment that plaintiff’s interrogatory response constituted a judicial admission. The argument
was not mentioned in the trial court’s October 16, 2020, order. Nevertheless, plaintiff does not
point this out or argue forfeiture. Rather, she replies that her production of the photographs did not
amount to an unequivocal admission regarding the condition of the defect or the driveway on the
date of the incident. To the contrary, plaintiff points out, she testified at her deposition that the
photographs did not depict the condition. Plaintiff misses the point. Realington’s argument is that
- 13 - 2021 IL App (2d) 200660-U
plaintiff made the judicial admission in her interrogatory responses and then impermissibly took a
contradictory position at her deposition.
¶ 43 Ultimately, however, we need not resolve whether plaintiff’s interrogatory responses
amounted to a judicial admission. Whether the photographs reflected the condition of the defect
or the driveway at the time of the incident is not material here given the undisputed testimony
regarding the visibly broken nature of the driveway at the time of the incident. Namely, Dammon
testified that the driveway had holes, depressions, and divots and that much of the driveway was
cracked and broken. He asserted that the deteriorated condition of the driveway was open and
obvious to anyone who observed it. There was no contradictory evidence presented. Rather,
plaintiff testified that, if Davis had been at the driveway, “he would see that there were problems
on the driveway, yes.” Plaintiff believed that the entire driveway needed attention. Both Davis and
Kern likewise testified regarding the defects in the driveway and the open and obvious deteriorated
condition of the driveway. The photographs, which were taken nine months after the incident, do
not refute the foregoing testimony regarding the deteriorated condition of the driveway at the time
of the incident.
¶ 44 Plaintiff nevertheless likens this case to numerous decisions in which a material factual
dispute regarding alleged obstructions to the visibility of a hazardous condition precluded a
determination of the open-and-obvious doctrine as a matter of law. See, e.g., Olson v. Williams All
Seasons Co., 2012 IL App (2d) 110818, ¶ 43 (dim lighting); Van Gelderen v. Hokin, 2011 IL App
(1st) 093152, ¶¶ 23, 30 (visibility of basement staircase in relation to placement of door and
direction it opened); Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14, 15-16, 18 (2010) (dim
lighting and optical illusion of a flat walking surface); Duffy v. Togher, 382 Ill. App. 3d 1, 11
(2008) (optical illusion as to depth of pool); Buchaklian v. Lake County Family Young Men’s
- 14 - 2021 IL App (2d) 200660-U
Christian Ass’n, 314 Ill. App. 3d 195, 202 (2000) (size and lack of contrast in locker room mat).
These decisions are inapposite. As discussed, there was no dispute here that the deteriorated
condition of the 3024 Jacqueline Court driveway was visible. Plaintiff testified that it was
“daylight” and “sunny” at the time of the incident, she was wearing her glasses, and nothing
obstructed her vision.
¶ 45 Further, plaintiff maintains that the material disputed issue is not the visibility of the
general condition of the 3024 Jacqueline Court driveway, but rather the visibility of the particular
defect on which she tripped. She cites her testimony and Dammon’s testimony that the particular
hole or divot on which she tripped was not prominent. The appellate court in Nida, 2013 IL App
(4th) 130136, ¶ 52, rejected the same argument under virtually identical facts. There, the plaintiff
tenant fell and injured her ankle while walking on the driveway when a piece of the driveway
broke. Id. ¶ 9. Summary judgment on the plaintiff’s personal injury claims was granted in the
defendant owner’s favor on grounds, inter alia, that the driveway’s dangerous condition was open
and obvious as a matter of law. Id. ¶ 19.
¶ 46 In affirming, the appellate court rejected the plaintiff’s attempt to distinguish between the
“ ‘visibly unbroken, apparently safe piece of asphalt’ and the driveway as a whole.” Id. ¶ 49. The
court noted, “Our question is not whether a reasonable person would anticipate the danger of
stepping on a single, unbroken piece of asphalt, as plaintiff asserts, but whether a reasonable person
would anticipate the danger of walking on a visibly broken driveway.” Id. ¶ 52. Viewing the
evidence in the light most favorable to the plaintiff, the court assumed that the driveway was
dangerous. Id. The driveway had an incline, was constructed primarily of asphalt with broken
pieces of asphalt and gravel, and was in a state of disrepair. Id.
- 15 - 2021 IL App (2d) 200660-U
¶ 47 However, the court reasoned, the evidence established that the plaintiff was aware of the
driveway’s condition, walked on the driveway in a “ ‘zigzag’ ” manner to avoid broken pieces of
asphalt, and had repeatedly requested that the defendant repair the driveway. Id. The plaintiff “was
under the same obligation imposed on any person traversing the driveway to use ordinary
perception, intelligence, and reasonable care for her own safety” and “to understand the risks
associated with walking on an asphalt driveway with an incline, observe broken pieces of asphalt
as an indication the driveway may continue to deteriorate and give way, resulting in a fall, and
select an alternate route ***.” Id. Accordingly, the driveway’s dangerous condition was open and
obvious as a matter of law, and the defendant “was entitled to presume plaintiff would exercise
caution when encountering an open and obvious condition.” Id. ¶¶ 19, 52-54.
¶ 48 Likewise, in Wilfong, the plaintiff was injured when he fell while walking across vehicle
tire ruts at a construction site. Wilfong, 401 Ill. App. 3d at 1047. As he stepped out of one rut and
into another rut, “ ‘the side of the rut *** gave way’ ” and caused him to fall. Id. at 1048. In
affirming summary judgment in the defendants’ favor, this court rejected the plaintiff’s contention
that neither he nor any reasonable person could have anticipated that the particular rut into which
he stepped would collapse. Id. at 1053. “[T]he question is not whether one particular rut would
collapse, but rather whether a reasonable person would anticipate the danger of crossing over the
ruts.” Id. at 1053-54. The court concluded that a reasonable person would have realized that
walking across the ruts on the site presented the “danger of a rut collapsing or of tripping or
otherwise falling.” Id. at 1054. Thus, the danger created by the ruts was open and obvious as a
matter of law. Id.
¶ 49 Similarly, in the instant case, there was no genuine issue of material fact with respect to
the deteriorated condition of the 3024 Jacqueline Court driveway, with its depressions, divots and
- 16 - 2021 IL App (2d) 200660-U
holes filled in with crushed asphalt. Indeed, plaintiff testified at length regarding her knowledge
of the driveway’s condition and of Realington’s use of crushed asphalt to fill the holes. The
evidence also established that plaintiff had traversed the 3024 Jacqueline Court driveway on many
occasions, including in the month prior to prior to the incident. We reject plaintiff’s attempt to
distinguish between the particular hole on which she tripped and the overall perforated condition
of the driveway. See Nida, 2013 IL App (4th) 130136, ¶ 49; Wilfong, 401 Ill. App. 3d at 1053. The
issue is not whether a reasonable person would anticipate the danger of stepping on a single hole,
but rather whether a reasonable person would anticipate the danger of walking on the visibly
broken 3024 Jacqueline Court driveway. See Nida, 2013 IL App (4th) 130136, ¶ 52; Wilfong, 401
Ill. App. 3d at 1053-54. There was no genuine issue of material fact that a reasonable person would
anticipate the danger of walking on the driveway. For these reasons, the trial court properly held
that the open-and-obvious doctrine applied as a matter of law.
¶ 50 B. Distraction Exception
¶ 51 Even if a condition is open and obvious, a possessor of land may still be liable where the
harm should be anticipated despite the condition’s obviousness. Wilfong, 401 Ill. App. 3d at 1054;
Restatement (Second) of Torts § 343A(1) (1965). One such instance is the “distraction exception”
to the open-and-obvious doctrine, where the possessor “has reason to expect that the invitee’s
attention may be distracted so that he will not discover what is obvious, or will forget what he has
discovered, or fail to protect himself against it.” Restatement (Second) of Torts § 343A cmt. f
(1965); Lee, 2019 IL App (2d) 180923, ¶ 17. “[T]he distraction exception only applies where it is
reasonably foreseeable that a plaintiff might be so distracted that she blunders into an open and
obvious danger.” Negron v. City of Chicago, 2016 IL App (1st) 143432, ¶ 17 (citing Ward, 136
Ill. 2d at 148). The mere possibility that a person might be distracted does not equate to the
- 17 - 2021 IL App (2d) 200660-U
foreseeability of a particular distraction in a legal sense. Id. A contrary holding would “saddle
landowners with the impossible burden of rendering their land injury-proof, a result which our
supreme court has explicitly rejected.” Id. (citing Ward, 136 Ill. 2d at 156).
¶ 52 Plaintiff argues that Realington should have reasonably anticipated that an invitee walking
down the driveway in its state would likely be focused on other potential hazards, such as vehicles,
and therefore not notice an otherwise obvious condition. As a preliminary matter, however,
plaintiff ignores the threshold requirement underlying application of the distraction exception—
evidence that she was actually distracted. See Bruns, 2014 IL 116998, ¶ 22 (“The distraction
exception will only apply where evidence exists from which a court can infer that plaintiff was
actually distracted.”). Here, plaintiff points to no evidence that she was actually distracted when
she fell. To the contrary, plaintiff testified that she was not doing anything that drew her attention
away from where she was walking and that nothing obstructed her vision.
¶ 53 Plaintiff’s testimony was that she “was just talking to [Dammon].” To the extent plaintiff
maintains that conversing with and looking at Dammon amounted to a distraction, the argument
has no merit. “[T]he mere fact of looking elsewhere does not constitute a distraction.” Id. Thus, in
Bruns, our supreme court rejected the plaintiff’s reliance on the distraction exception where the
plaintiff was merely looking toward the door of the clinic at which she had an appointment when
she stubbed her toe on an open and obvious sidewalk crack. Id. ¶ 30. In doing so, the court found
distinguishable the very same three cases upon which plaintiff relies here on grounds that all three
cases involved the presence of circumstances that required the diversion of the plaintiff’s attention
from the open and obvious danger. Id. ¶¶ 24-30 (distinguishing, inter alia, American National
Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 28-29 (1992) (distracted
by need to protect against a misstep on a billboard walkrail); Deibert v. Bauer Brothers
- 18 - 2021 IL App (2d) 200660-U
Construction Co., 141 Ill. 2d 430, 439 (1990) (distracted by need to protect against falling debris);
Ward, 136 Ill. 2d at 153-54 (distracted by carrying bulky merchandise from a store)). In contrast,
the court reasoned, the plaintiff in Bruns failed to identify any circumstance, much less a
reasonably foreseeable circumstance, that required the diversion of her attention from the open and
obvious sidewalk defect. Id. ¶ 30.
¶ 54 Moreover, the court in Bruns held that, even if the mere act of looking elsewhere could be
deemed a distraction, “it is, at most, a self-made distraction.” Id. ¶ 31. However, “ ‘a plaintiff
should not be allowed to recover for self-created distractions that a defendant could never
reasonably foresee.’ ” Id. (quoting Whittleman v. Olin Corp., 358 Ill. App. 3d 813, 817-18 (2005)).
To conclude otherwise and hold that “simply looking elsewhere constitutes a legal distraction”
would allow the distraction exception to swallow the open-and-obvious rule. Id. ¶ 34.
¶ 55 Likewise, here, there was no evidence presented that plaintiff focused her attention on
Dammon to avoid another hazard or potential hazard or that plaintiff failed to avoid the driveway
defect because another task required her attention. Rather, at most, plaintiff’s failure to pay
attention to the driveway was a self-made distraction that was not reasonably foreseeable by
Realington. See id.
¶ 56 In sum, the trial court properly determined that the open-and-obvious doctrine applied
without exception as a matter of law. This court has stated that, under these circumstances, where
the condition is open and obvious, and no exception applies, “ ‘then there is no duty.’ ” Lee, 2019
IL App (2d) 180923, ¶¶ 17-18 (quoting Bujnowski v. Birchland, Inc., 2015 IL App (2d) 140578, ¶
30). In other words, where a condition is open and obvious and no exception applies, the first two
factors of the four-factor test for the existence of a legal duty (the reasonable foreseeability of the
injury and the likelihood of the injury) establish the absence of a duty, and the last two factors (the
- 19 - 2021 IL App (2d) 200660-U
magnitude of the burden of guarding against the injury and the consequences of placing that burden
on the defendant), “ ‘however strongly they militated in favor of a duty, cannot outweigh the first
two factors.’ ” (Emphasis in original.) Id. ¶ 18 (quoting Bujnowski, 2015 IL App (2d) 140578, ¶
30). We acknowledged in Bujnowski that courts nonetheless have analyzed the last two factors
despite finding a condition open and obvious without exception. Bujnowski, 2015 IL App (2d)
140578, ¶ 55. However, we noted: “[T]here is one consistent thread in the case law. No published
premises-liability negligence case that we have found held both (1) that the open-and-obvious rule
applied without exception and (2) that the defendant nonetheless owed the plaintiff a duty.” Id.
¶ 57 Here, plaintiff does not argue that the magnitude of the burden of guarding against the
injury and the consequences of placing that burden on Realington outweigh the first two factors.
In any event, based upon our review of the undisputed facts in the record, we agree with the trial
court’s determination that the burden to continuously guard against the alleged erosion of the
crushed asphalt and of someone tripping and falling on the driveway as described in this case
“would likely be great and the consequences of doing so likely time-consuming and expensive just
as a matter of common sense.” Accordingly, Realington did not owe plaintiff a legal duty as a
matter of law.
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the trial court’s order granting Realington’s motion for
summary judgment.
¶ 60 Affirmed.
- 20 -