NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 190066-U
Order filed February 19, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
BOBBIE HOLDER, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellant, ) Will County, Illinois, ) v. ) ) TINI TOTS DAY CARE CENTER, ) Appeal No. 3-19-0066 FLORENCE RANSOM, WESLEY HELM, ) Circuit No. 17-L-423 DELORIS HELM, AND UNKNOWN ) OWNERS, MANAGERS, OPERATORS, ) OR AGENTS, ) Honorable ) Raymond E. Rossi, Defendants-Appellees. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE WRIGHT delivered the judgment of the court. Justices Holdridge and McDade concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The trial court properly granted summary judgment in favor of defendants.
¶2 Plaintiff, Bobbie Holder, brought a negligence action against defendants, Tini Tots Day
Care Center, Florence Ransom, Wesley Helm, Deloris Helm, and unknown owners, managers, operators, or agents, to recover damages sustained by plaintiff on the defendants’ business
premises. The trial court granted defendants’ motion for summary judgment. Plaintiff appeals.
¶3 I. FACTS
¶4 On May 18, 2017, plaintiff filed a five-count complaint alleging that defendants’
negligence resulted in plaintiff sustaining injuries following a fall on a stairway at the Tini Tots
Day Care Center (Tini Tots), defendants’ place of business. Plaintiff alleged that on May 19, 2015,
he was a business invitee at Tini Tots for the purpose of picking up his granddaughter.
¶5 Plaintiff’s complaint alleged that defendants breached their duty of care to plaintiff in that
defendants: (1) failed to provide a good, safe, and proper place for plaintiff to use, occupy, and
walk upon while in the common areas, including within the stairs of the subject property; (2)
negligently and carelessly allowed poor lighting or none at the time of the incident; (3) failed to
warn plaintiff and others of an unsafe and dangerous condition; (4) failed to inspect the area of the
occurrence; and (5) failed to provide a handrail for the stairway. Plaintiff alleged that defendants
knew of or should have known of these dangerous conditions and that defendant suffered an injury
as a direct and proximate result of one or more of the stated negligent acts or omissions. Defendants
filed an answer to plaintiff’s complaint on September 1, 2017, denying defendants’ claims, among
other things. 1
¶6 On October 17, 2018, defendants filed a motion for summary judgment. Defendants
asserted that they were entitled to a judgment in their favor as a matter of law since the undisputed
material facts did not establish a prima facie case of negligence. Specifically, defendants argued
the undisputed facts set forth in the record revealed the stairway constituted an open and obvious
condition that was not defective or dangerous, thus defendants owed no duty of care to plaintiff.
1 Plaintiff voluntarily non-suited Florence Ransom on October 4, 2017.
2 Further, defendants claimed they had no prior notice of an allegedly dangerous condition involving
the stairway. In support of their motion for summary judgment, defendants attached plaintiff’s
responses to defendants’ interrogatories, the incident report completed on the date of plaintiff’s
fall, several photographs of the stairway, and multiple deposition transcripts.
¶7 During his deposition, plaintiff explained that on May 19, 2015, he arrived at Tini Tots at
around 5 p.m. to pick up his two-year-old granddaughter. Once inside, a Tini Tots worker brought
plaintiff downstairs to the area where his granddaughter was located. Plaintiff did not see the
caution sign on the door to the stairway.
¶8 Plaintiff explained that there were three steps going down to where his granddaughter
waited. As he travelled down approximately three stairs, nothing about the stairs concerned
plaintiff. Plaintiff had no problem walking down the stairs. Plaintiff stated that it was kind of dark
when he went down the stairs and that he put his hand on the wall to go down the stairs, but he
could see his feet and there was enough light for plaintiff to see what lay ahead. Plaintiff testified
that if he felt the stairs were dangerous or the lighting in the stairway was inadequate, he would
have alerted defendants.
¶9 After reaching his granddaughter, plaintiff helped her put on her coat and followed directly
behind her as she successfully traversed the stairs on her own. Plaintiff explained that he was
watching his granddaughter as he climbed up the stairs, but nothing was blocking his view of each
stair, including the top landing. As plaintiff planted his right foot on the top landing, his left flip-
flop sandal caught the lip of the top step, and he fell forward. Plaintiff stated that his fall forward
was not caused by any substance on the step.
3 ¶ 10 Plaintiff landed on his left side, and the left side of his face hit the ground. Plaintiff’s entire
body fell on the top landing. The fall caused plaintiff to fracture his right hip. Plaintiff was not
aware of any prior complaints or incidents concerning the premises.
¶ 11 The discovery depositions of Deloris Helm, the owner of Tini Tots, and Jessica Majerus,
the director of Tini Tots at the time, were attached to defendants’ motion for summary judgment.
Helm testified that despite daily use, no person had fallen on the stairway during the 18 years Helm
operated Tini Tots, including staff and hundreds of young children. Helm stated that a handrail
was in place next to the stairs on the date in question. Helm agreed with plaintiff’s counsel that
there was a handrail on the left side of the stairs when looking up the stairs. Photographs in the
record are consistent with Helm’s testimony pertaining to the existence and location of the
handrail.
¶ 12 According to Majerus’s deposition testimony, she escorted plaintiff up and down the
stairway on the date in question. After Majerus walked up the stairs ahead of plaintiff, she heard
plaintiff fall behind her. Majerus notified and then retrieved plaintiff’s wife from the car. At that
time, plaintiff’s wife remarked to Majerus that plaintiff was not supposed to be walking because
he had received an injection that day. Both Helm and Majerus stated that despite inspections,
neither DCFS, the Lockport Fire Department, or the Illinois State Fire Marshal recommended any
changes to the stairway area, other than the installation of a gate.
¶ 13 Plaintiff’s response to defendants’ motion for summary judgment argued there is no dispute
that his attention was entirely focused on his young granddaughter as she was simultaneously
ascending the stairway just ahead of plaintiff. Consequently, plaintiff urged the trial court to deny
summary judgment because the pleadings, affidavits, depositions, and admissions at the very least
established that defendants owed a duty of care to plaintiff based on the distraction exception to
4 the open and obvious doctrine. Since defendants owed plaintiff a duty of care resulting from the
undisputed distraction, the issue of whether defendants breached their duty of care was a question
to be decided by the trier of fact.
¶ 14 Plaintiff also attached the affidavit of Gene Litwin, an engineer and trip and fall accident
expert, to his response to defendants’ motion for summary judgment. Litwin’s affidavit provided
that during his inspection he noticed the stairway appeared to have previously functioned as an
exterior stairway and that the light fixture at the top of the stairway was an outdoor light fixture.
Litwin stated that the threshold of the interior door at the top of this stairway was constructed
differently than most thresholds. He noted that the interior doorway transition from the landing to
the threshold was two and 3/8 inches, and interior doorway transitions are generally much lower.
According to Litwin, this unusual threshold resulted in a doorway transition that created an
unexpected hazard. Litwin added that additional, readily visible, posted warning signs may have
been helpful. Litwin did not conclude in his affidavit that there was a defect or specific danger
associated with the stairway.
¶ 15 On January 3, 2019, the trial court conducted a hearing on defendants’ motion for summary
judgment. Plaintiff argued that it was disputed whether the conditions present in the stairway were
open and obvious and that even if the stairway was an open and obvious condition, the distraction
exception applied. Following arguments, the trial court ruled as follows:
“THE COURT: *** There is no evidence of a defect with the stairs and the
allegations of an alleged dangerous condition are unsubstantiated. [Defendants] did
not owe a duty pursuant to the open and obvious doctrine, pursuant to traditional
tort analysis and pursuant to the notice requirement that’s inherent. I’m going to
grant summary judgment.”
5 ¶ 16 On February 1, 2019, plaintiff filed a timely notice of appeal.
¶ 17 II. ANALYSIS
¶ 18 On appeal, plaintiff argues the trial court erred by granting defendants’ motion for
summary judgment because genuine issues of material fact remain present and because defendants
owed plaintiff a duty of care pursuant to a traditional negligence analysis. Defendants argue that
the trial court properly granted summary judgment in favor of defendants.
¶ 19 At the outset, we address defendants’ somewhat strained forfeiture argument predicated on
Illinois Supreme Court Rule 341(h)(7). Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). According to
defendants, by challenging only the trial court’s ruling on the distraction exception to an open and
obvious condition on appeal, plaintiff has forfeited his right to appeal the trial court’s grant of
summary judgment based on the trial court’s alternative rationale that the stairway was defect free
and that defendants lacked the requisite notice of an inherently dangerous condition.
¶ 20 First, we note that the term defect is wholly absent from plaintiff’s complaint. Second,
notice of a condition, whether actual or constructive, is only dispositive in terms of summary
judgment where a defect or dangerous condition exists. See Hanna v. Creative Designers, Inc.,
2016 IL App (1st) 143727, ¶¶ 33-35. It appears to this court that the trial court unintentionally
broadened its holding to consider notice where such a conclusion was at odds with the trial court’s
finding that no defect or dangerous condition existed. Ultimately, plaintiff has exhaustively argued
that defendants owed plaintiff a duty of care both in the trial court and on appeal. Thus, we reject
the notion of forfeiture here and turn to the issue of whether the trial court erroneously granted
summary judgment in favor of defendants.
¶ 21 Summary judgment is proper where the pleadings, affidavits, depositions and admissions
of record, show that there is no genuine issue as to any material fact and that the moving party is
6 entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). The moving party
bears the initial burden of production to (1) demonstrate to the trial court that some element of the
case must be resolved in its favor, or (2) establish that there is a lack of evidence to support the
nonmoving party’s case. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). Once the moving
party satisfies this initial burden, the burden shifts to the nonmoving party to come forward with
some factual basis that would arguably entitle it to a favorable judgment. Id. The nonmoving party
must then present the evidence it has—it is the moment in a lawsuit where one must “put up or
shut up.” Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 14. The nonmoving
party cannot simply rest on his or her pleadings to raise genuine issues of material fact. Triple R
Development, LLC v. Golfview Apartments I, L.P., 2012 IL App (4th) 100956, ¶ 12. For purposes
of this appeal, our task is to review de novo whether the facts are truly undisputed and support the
trial court’s grant of summary judgment. Seymour v. Collins, 2015 IL 118432, ¶ 42.
¶ 22 Generally, business operators owe their invitees a duty to exercise reasonable care to
maintain their premises in a reasonably safe condition for the use of invitees. Ward v. K Mart
Corp., 136 Ill. 2d 132, 141 (1990). However, the open and obvious doctrine creates an exception
to this general duty of care owed by the landowner and provides that landowners are not liable to
their invitees for harm caused to them by any action or condition on the land whose danger is
known or obvious to them. Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14, 17 (2010); see
Bruns v. City of Centralia, 2014 IL 116998, ¶ 16. Where a dispute exists regarding the physical
nature of the condition, the question of whether the condition is open and obvious is a factual one.
Alqadhi, 405 Ill. App. 3d at 17-18.
¶ 23 Plaintiff first contends the trial court erred in granting defendants’ motion for summary
judgment because the facts are disputed with regard to whether the stairway in question constituted
7 an open and obvious condition. Plaintiff posits that the parties are in disagreement about the
adequacy of the lighting of the stairway, the visibility of the warning signage, and the presence of
a handrail, all being conditions that distorted or diminished the open and obvious nature of this
particular stairway. In response, defendants argue the undisputed facts support the theory that the
signage, handrail, and lighting did not render this particular stairway as anything other than open
and obvious. We agree.
¶ 24 Plaintiff testified during his deposition that he did not observe the posted caution sign, and
the photographs confirm that the sign would not be visible if the door at the top of the stairway
were open, or to a person travelling up the stairs. Plaintiff further indicated that he could see his
feet while traversing the stairway and that there was enough light for him to see each step and what
lay ahead. Plaintiff asserted that if he thought the lighting was inadequate, or that the stairway was
dangerous, he would have alerted defendants. Further, the photographs attached to defendants’
motion for summary judgment confirm the existence of a handrail.
¶ 25 The pleadings, affidavits, exhibits, depositions, and admissions on file reveal that the
undisputed facts establish the signage was present but not visible, a handrail was available, and
the lighting on the stairway was adequate. Hence, we conclude the physical nature of the stairway
was undisputed. Since no genuine factual dispute as to the physical nature of the stairway existed,
the question of whether the stairway constituted an open and obvious condition becomes a legal
question for the court. Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1053 (2010).
¶ 26 Whether a condition is obvious is determined by the objective knowledge of a reasonable
person, not plaintiff’s subjective knowledge. Buchaklian v. Lake County Family Young Men’s
Christian Ass’n, 314 Ill. App. 3d 195, 203 (2000). The photographs present in this record indicate
a stairway comprised of two stairs and a top landing, which arguably counts as a third stair.
8 Plaintiff testified that he clearly viewed the stairway on the date in question, and we find that the
existence of this stairway would be immediately obvious to any person inside of the Tini Tots
premises. Based on our careful review of this record, we conclude the stairway was open and
obvious in nature. Defendants’ motion for summary judgment clearly demonstrated to the trial
court that the stairway in this case constituted an open and obvious condition exception, but our
analysis does not end there.
¶ 27 The application of the open and obvious doctrine is not a per se bar to the finding of a legal
duty. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 891 (2009) Despite the conclusion that the stairway
was open and obvious, this court is still obligated to conduct a traditional duty analysis. Id.
¶ 28 To determine whether a duty exists, Illinois courts generally consider: (1) the foreseeability
that the defendant’s conduct will result in injury to another; (2) the likelihood of injury; (3) the
magnitude of guarding against the injury; and (4) the consequences of placing that burden on the
defendant. Curatola v. Village of Niles, 154 Ill. 2d 201, 214 (1993). Our supreme court has held
that the presence of an open and obvious condition, as is the case here, greatly influences the first
two elements of this traditional duty analysis, namely, the foreseeability and likelihood of injury
prongs. Sollami v. Eaton, 201 Ill. 2d 1, 17 (2002). Thus, where the condition is open and obvious,
both defendant’s ability to foresee injury and the likelihood of injury are slight. Id.
¶ 29 Since defendants adequately demonstrated the open and obvious nature of the stairway
such that they owed no duty to plaintiff, the burden shifted to plaintiff, in the context of summary
judgment, to provide a factual basis that would entitle him to a favorable judgment. See Fung, 374
Ill. App. 3d at 624. To this end, plaintiff argues that the act of watching his young granddaughter
climb the stairs satisfied the distraction exception to the open and obvious doctrine.
9 ¶ 30 The distraction exception applies to the open and obvious doctrine where a defendant has
reason to expect the invitee’s attention may be distracted, such that he or she will fail to discover
what is obvious or will forget what he or she has discovered and fail to protect him or herself
against it. Bruns, 2014 IL 116998, ¶ 20. The real issue when applying the distraction exception is
not whether plaintiff was distracted, but whether defendants would have reason to expect plaintiff
to be distracted. Hope v. Hope, 398 Ill. App. 3d 216, 221 (2010). To be foreseeable to a defendant,
the distraction should not be solely the plaintiff’s own creation. Lake v. Related Management Co.,
L.P., 403 Ill. App. 3d 409, 413 (2010). Here, plaintiff argues that the act of watching his young
granddaughter climb the stairs satisfied the distraction exception.
¶ 31 A review of the relevant case law cited by the parties reveals that the distraction exception
to the open and obvious doctrine applies: (1) where the defendant actually created the foreseeably
distracting condition of the premises (see Deibert v. Bauer Brothers Construction Company, 141
Ill. 2d 430, 434-39 (1990)); (2) where the plaintiff was focused elsewhere in order to avoid a
potential hazard (see American National Bank & Trust Co. of Chicago v. National Advertising Co.,
149 Ill. 2d 14, 27-29 (1992)); or (3) where the plaintiff, a student, was distracted by a task he was
directed to perform (see Rexroad v. City of Springfield, 207 Ill. 2d 33 (2003)).
¶ 32 Here, defendants neither affirmatively created a distraction nor expressly directed or
expected plaintiff to watch his granddaughter as she ascended the stairs. Further, neither the
physical condition of the stairway nor the layout of the Tiny Tots facility support plaintiff’s theory
that defendants created or should have foreseen this potential distraction. Foreseeability concerns
what is objectively reasonable to expect, not what could conceivably occur. National Advertising
Co., 149 Ill. 2d at 29. Stated simply, it was not reasonably foreseeable to defendants that an adult
10 would fail to watch where he was walking when ascending two steps before placing his second
foot on the top landing.
¶ 33 Applying the well-established case law to the undisputed facts reflected in the record
submitted to the trial court, we conclude the true distraction, if any, was self-made in nature. Based
on this record, plaintiff knew he was walking up a short stairway but freely chose to focus on his
grandchild. We conclude the distraction exception is inapplicable.
¶ 34 Continuing our analysis of the foreseeability and likelihood of injury, we note that plaintiff
has not alleged or shown that any other persons suffered injuries on the same stairway. In fact,
Helm’s deposition reveals that during the 18 years of operation, no other person has been injured
on this particular stairway. Neither DCFS, the Lockport Fire Department, nor the Illinois State Fire
Marshal took issue with the stairway during inspections. Based on the open and obvious nature of
the stairway and the record before this court, we conclude that defendants could not have
reasonably foreseen plaintiff’s accident, and the likelihood of plaintiff’s mishap was slight. Thus,
the first two factors in the traditional duty analysis weigh heavily against the finding of a duty.
¶ 35 The third and fourth duty factors, namely, the magnitude of guarding against the injury and
the consequences of placing that burden on defendants, hold little weight here. Plaintiff admitted
during his deposition that the lighting was sufficient and that he did not feel the stairs were
dangerous. Despite plaintiff’s initial assertions, a handrail was present and available for his use.
The undisputed facts of this occurrence additionally reveal that plaintiff was so focused on his
granddaughter that no amount of signage would have altered plaintiff’s conduct. Stated simply,
plaintiff has not convinced this court that alterations to the stairway would render the stairway
safer.
11 ¶ 36 In conclusion, our analysis of the four duty factors discussed above brings us to the same
conclusion as the trial court; namely, that defendants were not negligent because they owed
plaintiff no duty of care in this case.
¶ 37 III. CONCLUSION
¶ 38 The judgment of the circuit court of Will County is affirmed.
¶ 39 Affirmed.