Fratto v. Illinois Sports Facilities Authority

2026 IL App (1st) 241979-U

• Court: Appellate Court of Illinois
• Decided: January 28, 2026
• Docket: 1-24-1979
• Status: Unpublished

Opinion

2026 IL App (1st) 241979-U

FIFTH DIVISION January 28, 2026

No. 1-24-1979

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

ROSA FRATTO, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of ) Cook County v. ) ) No. 22 L 005816 ILLINOIS SPORTS FACILITIES AUTHORITY, ) CHICAGO WHITE SOX, LTD., AND CWS ) The Honorable MAINTENANCE COMPANY, ) Michael F. Otto, ) Judge, presiding. Defendants-Appellees. )

JUSTICE TAILOR delivered the judgment of the court. Presiding Justice Mitchell and Justice Mikva concurred in the judgment.

ORDER

¶1 Held: The judgment of the trial court is reversed. The trial court erred when it granted summary judgment to defendants because questions of fact exist about whether the dangerous condition on defendants’ premises was open and obvious and whether the distraction exception applies. No. 1-24-1979

¶2 I. BACKGROUND

¶3 This appeal stems from a negligence action brought by Rosa Fratto against Defendants

Illinois Sports Facilities Authority, Chicago White Sox, Ltd., and CWS Maintenance Company

after she tripped and fell on their property.

¶4 For 29 years, Rosa Fratto sold concessions during White Sox baseball games at Guaranteed

Rate Field. Her daughter, Elena Mancari, also worked at Guaranteed Rate Field during the games.

They were both seasonal employees, employed by a food and beverage company called Illinois

Sportservice.

¶5 On October 29, 2021, Fratto and Mancari went to Guaranteed Rate Field to return their

employee identification badges to their employer at the end of the baseball season. To get to the

Illinois Sportservice office inside the stadium, they walked down the same service tunnel they had

used to get to the office at the start of each one of their shifts. The tunnel was approximately 20 to

25 feet wide, and was used as a pedestrian walkway, a cart path, and for storage. Items were stored

along the outer wall of the tunnel, and a clear path for pedestrians and cart traffic was left open

towards the inner wall of the tunnel. Defendants’ witness described the service tunnel as a “living,

breathing, active area.”

¶6 As Fratto and Mancari walked through the tunnel, nothing obstructed their pathway to the

Illinois Sportservice office. Then, Mancari noticed a large mural depicting a life-size image of star

Chicago White Sox player, José Abreu, on the right side of the tunnel. The mural was

approximately eight feet tall, and was supported by a frame made of two by four lumber. The legs

of the frame were also made of two by four lumber. The legs were painted white, were attached to

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either side of the mural frame, and extended behind and in front of the mural, with the front legs

protruding into about the center of the tunnel.

¶7 During the 2021 baseball season, the Abreu mural, along with other life-size murals of

White Sox players, were displayed on the concourse level of the Guaranteed Rate Field. The

murals attracted patrons to stand in front of them and have their pictures taken. However, the

record is not clear how the murals were displayed on the concourse level, including whether the

same two by four lumber was used to hold the murals upright and whether the lumber protruded

into the concourse level tunnel used by the many hundreds and thousands of baseball patrons at

any given time during a game. The mural was to be sold at auction at the end of the White Sox

baseball season, and was stored in the service tunnel, along with other murals behind it, until then.

That is where Fratto and Mancari encountered the Abreu mural.

¶8 As Fratto and Mancari were walking in the service tunnel, Mancari grabbed Fratto’s arm,

pointed out the Abreu mural as they were directly in front of it, and asked Fratto if she would like

her picture taken in front of it. Fratto said yes, walked over to the mural, and stood between the

white legs of the mural’s frame to have her photo taken. After Mancari took the photo, Fratto

turned right to walk away and tripped over the mural’s leg. She was not paying attention to where

she was walking and did not see the white wooden leg in front of her before she fell. During her

deposition, Fratto said she was not distracted by anything at the time she fell; she only remembered

talking to her daughter.

¶9 Surveillance footage captured Fratto and Mancari approaching the Abreu mural, Fratto

walking to the mural to stand in front of it, and Fratto’s fall. From the video it appears that Fratto

was looking directly at the mural and not at its wooden supporting base constructed of two by four

3 No. 1-24-1979

lumber. When she was shown a video of the incident during her deposition, Fratto admitted that

the mural’s white legs were visible.

¶ 10 When Mancari was shown the photo she took of Fratto standing in front of the mural during

her deposition, she admitted that the legs attached to the artwork appeared “white and a different

color than the floor” and that the mural’s legs did not blend into the floor. Although she conceded

that the lighting in the tunnel was not inadequate, she did not see the mural’s leg before Fratto

tripped over it because she was “just distracted with taking the picture.” When Mancari was shown

a video of the incident, she initially said the white legs of the mural were visible, but then said the

whitish-gray hue of the concrete floor of the tunnel and the white legs of the mural “blended

together” and made it difficult to see the legs.

¶ 11 Fratto, who sustained injuries as a result of her fall, filed suit against Defendants, alleging

that they were negligent for failing to warn of an unreasonably dangerous condition and for

allowing the walkway to remain in an unsafe condition. Defendants responded that they owed no

duty to Fratto because the mural’s legs constituted an open and obvious dangerous condition, to

which no exception applied.

¶ 12 On May 22, 2024, the trial court granted Defendants’ motion for summary judgment. It

concluded, based on the video evidence, photographic evidence and deposition testimony, that the

tripping hazard was “open and obvious.” The court noted that “the legs of the mural were painted

a bright white. That is plain in both the still photo and the video. And they were in contrast to the

floor, which was not white. It was sort of a yellowish gray. And they were painted several inches

high.”

¶ 13 The court noted that there “really hasn’t been any argument that the deliberate encounter

exception applies,” but nevertheless found there was “no evidence” that Fratto had to encounter

4 No. 1-24-1979

the mural, because “[t]here was more than sufficient room in which Mrs. Fratto could have

proceeded without encountering the mural or the tripping hazard.”

¶ 14 Next, the court considered whether the distraction exception applied. It noted that Fratto

“expressly testified that she was not distracted at the time she fell” and that “all she remembered

looking at was her daughter.” It found “no evidence *** that would have given any of the

defendants reason to foresee that Ms. Fratto or anybody would have been distracted by a family

member.”

¶ 15 In addition, the court found that although additional steps, like adding caution tape on the

mural’s legs would have imposed a “minimal burden” on Defendants, the consequences of

guarding against all open and obvious conditions on their property would be significant. Therefore,

the trial court found, as a matter of law, that Defendants owed no duty to Fratto and granted their

motion for summary judgment.

¶ 16 After the court denied Fratto’s motion for reconsideration, she timely appealed.

¶ 17 II. ANALYSIS

¶ 18 Fratto argues that the trial court erred when it granted summary judgment to Defendants

after finding that they had no duty to protect her as a matter of law. “Summary judgment is proper

where the pleadings, depositions, admissions and affidavits on file, viewed in the light most

favorable to the nonmoving party, show that no genuine issue of material fact exists and that the

moving party is entitled to judgment as a matter of law.” Bulduk v. Walgreen Co., 2015 IL App

(1st) 150166-B, ¶ 14; 735 ILCS 5/2-1005(c) (West 2024). Summary judgment is not proper,

however, “where material facts are in dispute or reasonable persons might draw different

5 No. 1-24-1979

inferences from the undisputed facts.” Bulduk, 2015 IL App (1st) 150166-B, ¶ 14. We review a

trial court’s grant of summary judgment de novo. Id..

¶ 19 “In order to prevail in an action for negligence, the plaintiff must prove that the defendant

owed a duty, that the defendant breached that duty, and that defendant’s breach was the proximate

cause of injury to plaintiff.” Bell v. Hutsell, 2011 IL 110724, ¶ 11. “The existence of a duty under

a particular set of circumstances is a question of law for the court to decide.” Choate v. Indiana

Harbor Belt Railroad Co., 2012 IL 112948, ¶ 22. “Absent a legal duty of care of to the plaintiff,

the defendant cannot be found negligent.” Ballog v. City of Chicago, 2012 IL App (1st) 112429, ¶

20. While the existence of a duty may be resolved on a motion for summary judgment (St. Martin

v. First Hospitality Group, Inc., 2014 IL App (2d) 130505, ¶ 10), “if there is a dispute of material

fact affecting the existence of an undertaking of a duty, summary judgment is improper.”

Bourgojne v. Machev, 362 Ill. App. 3d 984, 995 (2005).

¶ 20 To determine whether a duty exists, the court considers “(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.” Bruns v. City of

Centralia, 2014 IL 116998, ¶ 14.

¶ 21 A. Open and Obvious

¶ 22 Although landowners have a common law duty to maintain public property in a reasonably

safe condition (Monson v. City of Danville, 2018 IL 122486, ¶ 24), “a party who owns or controls

land is not required to foresee and protect against an injury if the potentially dangerous condition

6 No. 1-24-1979

is open and obvious.” Bruns, 2014 IL 116998, ¶ 16 (quoting Rexroad v. City of Springfield, 207

Ill. 2d 33, 44 (2003)).

¶ 23 Fratto argues that the trial court erred when it found that the legs of the mural constituted

an open and obvious condition as a matter of law. She claims that “there is a dispute as to whether

the Mural legs were visible to an invitee exercising ordinary care for her own safety” because there

is “conflicting testimony, expert opinions, and physical evidence contained in the record on

appeal.” Defendants respond that there is no dispute and that the trial court properly found, as a

matter of law, that the mural’s legs were an open and obvious condition.

¶ 24 “[W]here no dispute exists as to the physical nature of the condition, whether the dangerous

condition is open and obvious is a question of law.” Bruns, 2014 IL 116998, ¶ 18. However, “where

there is a dispute about the condition’s physical nature, such as its visibility, the question of

whether a condition is open and obvious is factual” (Wilfong v. L.J. Dodd Construction, 401 Ill.

App. 3d 1044, 1053 (2010)), and the obviousness of the danger is a question for the jury. Alqadhi

v. Standard Parking, Inc., 405 Ill. App. 3d 14, 17 (2010). To determine whether a condition is

open and obvious, the court considers “the objective knowledge of a reasonable person, not the

plaintiff’s subjective knowledge.” Menough v. Woodfield Gardens, 296 Ill. App. 3d 244, 248-49

(1998); Foy v. Village of La Grange, 2020 IL App (1st) 191340, ¶ 21.

¶ 25 To support her contention that a genuine issue of fact exists as to the open and obvious

nature of the mural legs here, Fratto relies on Buchaklian v. Lake County Family Young Men’s

Christian Association, 314 Ill. App. 3d 195 (2000). There, the plaintiff sued the YMCA after she

tripped and fell on a mat in the locker room. 314 Ill. App. 3d at 197-98. The trial court granted

summary judgment to the YMCA, but this court reversed. Id. at 199, 205. We found that a question

of fact remained as to whether the condition of the mat was open and obvious, and reasoned that

7 No. 1-24-1979

“[t]he evidence in the record can support a reasonable inference that the mat was difficult to

discover because of its size, the lack of significant color contrast between the defect and the

surrounding mat, or merely the short time that a person has in which to discover the defect as he

or she takes a few steps toward the mat.” Id. at 202.

¶ 26 Like the mat in Buchaklian that was “difficult to discover because of *** the lack of

significant color contrast between the defect and the surrounding mat” (314 Ill. App. 3d at 202),

the record here presents conflicting evidence about the visibility of the mural legs. While the photo

in the record shows that the mural’s white legs contrast with the color of the concrete floor of the

tunnel, a fact Fratto and Mancari do not dispute, Mancari testified that the whitish-gray hue of the

concrete floor of the tunnel and the white legs of the mural “blended together” and made it difficult

to see the mural’s legs. In addition, both Mancari and Fratto testified that they never saw the

mural’s legs before Fratto’s fall. That multiple witnesses testified similarly in this regard may

support an inference that a reasonable person in Fratto’s position may likewise not have noticed

the mural legs. Although the open and obvious nature of a condition “is determined by the

objective knowledge of a reasonable person, not the plaintiff’s subjective knowledge” Buchaklian,

314 Ill. App. 3d at 203 (quoting Menough, 296 Ill. App. 3d at 248-49), Fratto’s expert, Scott

Leopold, noted that Fratto’s view of the mural’s leg would have differed from the vantage point

of the leg seen in the video footage from the surveillance camera, and therefore opined that the

nature of the leg “may not [have been] readily apparent to a pedestrian exercising ordinary

caution.” Finally, because the service tunnel is curved, Fratto would not have been able to see what

is around the bend, leaving less time to discover the potentially dangerous condition than if the

tunnel was straight. See Buchaklian, 314 Ill. App. 3d at 202 (finding that the condition of the mat

8 No. 1-24-1979

was not open and obvious as a matter of law in part due to the short amount of time the plaintiff

had to discover the defect as she walked towards the mat).

¶ 27 Based on this record, we find a genuine issue of material fact exists as to the open and

obvious nature of the mural’s leg, and therefore find that this issue should have gone to the jury.

See Nickon v. City of Princeton, 376 Ill. App. 3d 1095, 1106 (2007) (concluding that the open and

obvious nature of the depression on the sidewalk “was for the jury to assess” where the photos

show a “small depression similar in color to the sidewalk” that was “partially covered by weeds”

and which “was not visible until the photographer’s camera was almost directly about the

depression”).

¶ 28 B. Distraction Exception

¶ 29 Even if a potentially dangerous condition is open and obvious as a matter of law, Illinois

courts recognize two exceptions to the open and obvious rule: the deliberate encounter exception

and the distraction exception. Bruns, 2014 IL 116998, ¶ 20. “Exceptions to the rule make provision

for cases in which ‘the possessor of land can and should anticipate that the dangerous condition

will cause physical harm to the invitee notwithstanding its known or obvious danger.’ ” Id.

(quoting Restatement (Second) of Torts 343A cmt. f at 220 (1965)). Fratto concedes that the

deliberate encounter exception does not apply here, so we consider only the distraction exception.

¶ 30 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 will forget

what he has discovered, or fail to protect himself against it.” Bruns, 2014 IL 116998, ¶ 20 (quoting

Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002)). This exception only applies if a plaintiff can show that

she was actually distracted, and the defendant, not the plaintiff, created the condition that caused

the distraction. Bruns, 2014 IL 116998, ¶ 22. “The law cannot require a possessor of land to

9 No. 1-24-1979

anticipate and protect against a situation that will only occur in the distracted mind of his invitee.”

Id. ¶ 31 (quoting Whittleman v. Olin Corp., 358 Ill. App. 3d 813, 817-18 (2005)).

¶ 31 Here, Fratto argues that “a genuine issue of material fact exists as to whether [she] was

distracted” at the time of her fall. She argues that it was the Abreu mural itself that distracted her

and caused her to fail to notice the mural’s two by four wooden supporting legs on the ground.

Defendants argue in response that because Fratto testified she was not distracted at the time she

fell, she thereby conceded that the distraction exception to the open and obvious rule does not

apply.

¶ 32 In her deposition testimony, when Fratto was asked if she was “distracted by anything” at

the time she tripped, she said no. We do not agree that Fratto’s response to this general question is

dispositive, however, where there is other evidence in the record that she was distracted. Cf.

Deibert v. Bauer Brothers Construction Company, Inc., 141 Ill. 2d 430, 433-34 (1990) (finding a

genuine issue of fact existed even though the plaintiff said he was not distracted as he walked to a

portable bathroom on a construction site and did not say he was distracted as he left the bathroom

and fell in a tire rut because the record reflected that he was looking up as he exited the bathroom

to avoid being hit by construction debris based on past experience). Rather, when the evidence is

viewed in the light most favorable to Fratto, we find a genuine issue of material fact exists as to

whether she failed to notice the mural’s legs because she was distracted by the mural itself and by

the act of having her photo taken in front of it. First, when Fratto was asked during her deposition

if she looked to see where she was walking as she was “taking those steps to have [her] picture

taken in front of the artwork,” she said she didn’t see the wooden legs of the mural at all. Second,

Jonathan Vasquez, Senior Director of Park Operations for the White Sox, testified that the mural

had previously been displayed on the concourse level of the ballpark expressly so that individuals

10 No. 1-24-1979

could take “selfies” in front of it. Third, video footage of the incident shows Fratto and her daughter

walking down the service tunnel. A large mural featuring cars and buildings is painted on the

service tunnel wall, just to their left. As they get closer to the Abreu mural, which is several feet

to their right, Fratto’s daughter stops her. Fratto then turns toward the Abreu mural and looks at it.

Her daughter pulls out her camera and motions for Fratto to go stand in front of the mural. Fratto,

who is positioned between the two by four wooden legs on each side of the mural, takes five or

six steps towards the mural, then turns to face her daughter to pose for the photo. She does not

appear to look down at any point. After Fratto’s daughter takes the photo, she turns and continues

walking down the service tunnel. Fratto then turns right, and starts walking towards her daughter.

She does not look down, and trips over the mural’s leg, which sticks up almost four inches. We

observe that a reasonable person who has just had their photo taken may want to see how their

picture came out, which may have caused Fratto to look at her daughter, who was holding the

camera, and not the ground as she walked. Alternatively, Fratto’s attention may have been drawn

to the large mural of cars and buildings on the opposite wall as she walked away from the Abreu

mural.

¶ 33 When viewed in the light most favorable to Fratto, a reasonable inference may be drawn

that she did not perceive the potential trip hazard posed by the mural’s legs because she was

distracted by looking up at the life-size image of Abreu, a home-team professional athlete, and the

camera, a distraction created by Defendants for the very purpose of fan engagement through

photography.

¶ 34 The intended purpose of the mural was to draw the attention of ballpark patrons so that

they could be photographed with the professional athlete’s life-size image in the backdrop. The

record shows that the subject mural and others like it were placed on the concourse level during

11 No. 1-24-1979

the season for patrons to view and take pictures with, presumably to enhance their experience at

Guaranteed Rate Field. The fact that the mural was expressly intended to draw the attention of

ballpark patrons makes this case distinguishable from those where there was no evidence of an

actual distraction created by the defendant. See, e.g., Bruns, 2014 IL 116998, ¶ 34 (finding the

distraction exception did not apply when a plaintiff tripped over an uneven sidewalk when she was

looking towards the door of an eye clinic instead of down at the sidewalk, reasoning that “[i]n the

absence of an actual distraction” it was not reasonably foreseeable for the city to expect that a

pedestrian, “generally exercising reasonable care for her own safety, would look elsewhere and

fail to avoid the risk of injury from an open and obvious sidewalk defect.”). Rather, this case is

more analogous to Diebert v. Bauer Brothers Construction Company, Inc., 141 Ill. 2d 430 (1990),

and Bulduk v. Walgreen Co., 2015 IL App (1st) 150166-B, where distractions created by

defendants prevented plaintiffs from protecting themselves from open and obvious dangers. See

Diebert, 141 Ill. 2d at 439-40 (concluding that the distraction exception applied after a plaintiff

was injured at a construction site when he fell in a tire rut after exiting a portable bathroom while

he was looking up to see if construction materials were being thrown down because defendant

created the distraction by allowing debris to be thrown off the balcony, making it impossible for

plaintiff to both look up to check for debris and down to protect himself from tripping); Bulduk,

2015 IL App (1st) 150166-B, ¶¶ 22-26 (finding that the distraction exception applied where

plaintiff was injured by a cleaning machine that fell on her in defendant’s retail store, noting that

plaintiff’s “focus on finding the cosmetic items she wanted to purchase distracted her from noticing

the danger the machine posed” and reasoning that because plaintiff was “performing a task,

supported by defendant, in looking at the cosmetics on the shelf,” it was “reasonably foreseeable

that a customer *** would actually be distracted while searching the items on a shelf and not notice

12 No. 1-24-1979

the open and obvious danger posed by the large cleaning machine.”). By placing a life-size mural

of Abreu in a “living, breathing, active area”, Defendants should have foreseen that it could serve

as a distraction to individuals passing by.

¶ 35 Defendants, however, argue that Fratto was not facing the mural at the time she fell, so she

could not have been distracted by it, and that any other possible distractions—like Fratto looking

at or talking to her daughter—were self-created, so the distraction exception does not apply. Here,

however, a reasonable inference may be drawn from the video and other evidence in the record

that it was the mural—a distraction created by Defendants—that drew Fratto’s attention up and

away from the ground as she walked toward it and turned to have her photograph taken, just as

Defendants intended, and this is what caused her to fail to discover the danger posed by the mural’s

legs and to protect herself against it in the first place. Moreover, because the incident occurred in

a matter of seconds, we will not examine the video frame by frame to determine if Fratto should

have recognized the mural’s legs after she had her photo taken and in the second or two she walked

away. Rather, that is a question for the fact-finder. Therefore, we find this case distinguishable

from those where plaintiffs failed to discover open and obvious conditions solely because of self-

created distractions. See, e.g., Wilfong, 401 Ill. App. 3d at 1055 (finding that the distraction

exception did not apply where plaintiff fell when walking over a tire rut on a construction site

while talking on his cell phone, reasoning that “to any extent that talking on the cell phone was a

distraction to crossing the ruts [upon which plaintiff fell], plaintiff created that distraction by

answering the phone and continuing to walk across the site while talking”).

¶ 36 C. Traditional Duty Analysis

¶ 37 The trial court determined that Defendants owed no duty to Fratto because it found, as a

matter of law, that the mural’s leg was open and obvious and that the distraction exception did not

13 No. 1-24-1979

apply. We disagree with its conclusion. As noted above, we consider four factors when

determining whether a defendant owes a duty to a plaintiff: “(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.” Bruns, 2014 IL 116998,

¶ 14.

¶ 38 Generally, when a condition is open and obvious, “the foreseeability of harm and the

likelihood of injury will be slight, thus weighing against the imposition of a duty.” Id. ¶ 19.

However, “[w]here an exception to the open and obvious rule applies, the outcome of the duty

analysis with respect the first two factors is reversed. Whereas operation of the open and obvious

rule negatively impacts the foreseeability and likelihood of injury, application of an exception to

the rule positively impacts the foreseeability and likelihood of injury.” Id. ¶ 20. (Internal quotation

and citation omitted.)

¶ 39 Viewing the evidence in the light most favorable to Fratto, as we must, we find genuine

issues of material fact exist regarding the open and obvious nature of the mural’s legs and whether

the distraction exception applies. Because these unresolved issues are directed to the first two

factors of the duty analysis—the foreseeability of harm and likelihood of Fratto’s injury—we

cannot say as a matter of law that Defendants owed no duty to Fratto. As to the third and fourth

factors, Defendants do not dispute that the magnitude of the burden of guarding against the injury

is minimal, but they contend that finding a duty here would require them “to injury-proof [their]

entire stadium, parking lots, service tunnels and warehouses, to protect [their] invitees from their

own carelessness” and reason that “[i]mposing that standard would undermine the purpose of the

open and obvious doctrine and would saddle premises owners with ‘the impossible burden of

rendering its premises injury-proof,’ a result which our supreme court has explicitly rejected.” We

14 No. 1-24-1979

do not agree that the consequences of placing the burden on Defendants weigh against the

imposition of a duty and find Defendants’ parade of horribles to be hyperbole, entirely unsupported

by the record. Defendants do not identify a single instance of a defect it would be required to guard

against. Moreover, Defendants paint with too broad a brush. We need not concern ourselves with

every possible unreasonably dangerous condition in the entire ballpark, and instead, can confine

our analysis to the consequences of placing the burden on Defendants to protect against trip

hazards posed by the mural’s legs or other similar items in the service tunnel. See, e.g., Ward v.

K Mart Corp., 136 Ill. 2d 132, 156 (1990) (after plaintiff collided with a concrete pole located

outside of a retail store, the court found that “the magnitude of the burden on defendant to exercise

reasonable care to protect its customers from the risk of colliding with the post is slight” as “[a]

simple warning may well serve to remove the unreasonableness of the danger posed by the post”

and reasoning that “[w]hether in fact the condition itself served as adequate notice of its presence

or whether additional precautions were required to satisfy the defendant's duty are questions

properly left to the trier of fact.”). Cf. Bezanis v. Fox Waterway Agency, 2012 IL App (2d) 100948,

¶ 30 (in a case where a teenager was injured diving into a shallow part of a lake, the court found

that the trial court did not err in declining to impose a duty on defendants to warn against diving

into shallow waters because doing so would require defendants to “(1) measure the water level and

determine the topography of the lakes' bottoms, (2) post floating warnings and cordon off those

areas of the lakes to show where it is unsafe to dive, and (3) reassess the water levels and lake

bottoms as necessary, depending on their fluctuations”, which would “create a practical and

financial burden of considerable magnitude” and could result in consequences “include[ing] the

curtailment of the public's access to Petite Lake and the Chain O’ Lakes as a whole, to the detriment

of the public at large”).

15 No. 1-24-1979

¶ 40 In sum, the trial court erred when it found no duty and granted summary judgment to

Defendants because Fratto presented sufficient evidence that could impose a duty on Defendants

and entitle her to recovery on her negligence claim. See Bourgojne v. Machev, 362 Ill. App. 3d

984, 995 (2005) (“if there is a dispute of material fact affecting the existence of an undertaking of

a duty, summary judgment is improper.”)

¶ 41 III. CONCLUSION

¶ 42 For the foregoing reasons, the judgment of the trial court is reversed.

¶ 43 Reversed and remanded.