2023 IL App (1st) 220598-U No. 1-22-0598 Order filed November 16, 2023 Fourth Division 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 ______________________________________________________________________________
GREGORY YERSICH, a Minor by his Mother, ) Appeal from the JESSICA YERSICH, ) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) No. 20 L 2162 ) THE CITY OF CHICAGO, ) Honorable ) Preston Jones Jr., Defendant-Appellee. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court. 1 Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: We reversed the trial court’s grant of summary judgment in favor of defendant and remanded for further proceedings, where a question of material fact existed as to whether the condition that caused plaintiff’s injury was open and obvious and whether the distraction exception applied.
¶2 Plaintiff Gregory Yersich, a minor, through his mother Jessica Yersich, appeals the trial
court’s grant of summary judgment for defendant, the City of Chicago, on plaintiff’s negligence
1 This case was sent to Presiding Justice Rochford’s chambers on November 7, 2023. No. 1-22-0598
claim arising from injuries he sustained when his scooter struck a pothole in a crosswalk. 2 Plaintiff
contends that the trial court erred when it found that the pothole was open and obvious to his
supervising parent, and therefore, defendant did not owe him a duty of care. We reverse the grant
of summary judgment for defendant and remand for further proceedings.
¶3 On February 21, 2020, plaintiff filed a complaint claiming that on May 23, 2019, he fell
and was injured when his scooter struck a pothole in the crosswalk at the intersection of 36th Street
and Wallace Street in Chicago. Plaintiff alleged that defendant failed to exercise ordinary care in
keeping and maintaining the public way in a reasonably safe condition. Plaintiff further alleged
that defendant carelessly and negligently maintained, kept, and controlled the street and permitted
the crosswalk to remain in a condition that resulted in injury to plaintiff, and that defendant knew,
or in the exercise of ordinary care should have known, the condition of the street and crosswalk.
Plaintiff sought damages and reimbursement for medical bills.
¶4 Jessica testified in her deposition that she had three children, plaintiff, Lincoln, and
Braxton. In May 2019, plaintiff was four years old, Lincoln was two, and Braxton was turning
one. Around 10:30 a.m. on May 23, 2019, Jessica and the children were walking in a residential
area on the way to McClellan School park. The weather was humid, and Jessica saw puddles and
observed that woodchips were wet. Braxton was in the front seat of the stroller and Lincoln was
in the back seat. Plaintiff was on a scooter, flush with the front seat of the stroller.
¶5 Jessica was familiar with the area and had been to McClellan School park a handful of
times. The entrance to the park was about half a block from the “ramp” into the crosswalk. The
2 For clarity, we will refer to Gregory Yersich as plaintiff and Jessica Yersich by her first name.
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stroller was in front of Jessica and plaintiff was on her right side, next to the parkway. As Jessica
approached the crosswalk, she watched for vehicles.
¶6 From the corner of her eye, Jessica saw plaintiff fall. The front two wheels of plaintiff’s
scooter became “stuck” in a pothole and he “went over his handlebars.” Jessica moved the stroller
out of the street and ran back to plaintiff, who was screaming. Plaintiff was subsequently
transported to the hospital, where an x-ray revealed two breaks to the right arm.
¶7 Prior to the incident, Jessica did not see the pothole in the crosswalk because she was
looking for vehicles. As she and her children entered the crosswalk, Jessica watched a vehicle
approach and decelerate. The vehicle was on her left side and plaintiff was on her right. Jessica
waited for the car to slow down, then she waved to the driver and walked through the crosswalk
with her children. Jessica was still looking at the vehicle on her left when plaintiff fell.
¶8 Jessica did not recall having previously seen the pothole. Had Jessica seen it, she would
not have told plaintiff to go around it because “it looked flat,” i.e., it did not appear to be a deep
hole. She did not measure the dimensions of the pothole and did not know how long it had existed
or whether it had been reported to defendant prior to the incident.
¶9 During her deposition, Jessica identified photographs of the crosswalk where the incident
occurred. First, she identified photographs depicting plaintiff’s scooter in the crosswalk, and
explained that these photographs were taken by her husband a day or two after the incident. She
also identified photographs of the intersection without the scooter, which also were taken by her
husband. Jessica agreed that the photographs truly and accurately depicted the crosswalk as it
appeared on May 23, 2019.
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¶ 10 The photographs used in Jessica’s deposition are contained in the record on appeal and this
court has viewed them. All photographs are in color and depict a crosswalk. The photographs are
taken from different vantage points and several of them depict a scooter in a small pothole in the
crosswalk. In some of the photographs, the pothole appears to be filled with water; in other
photographs, it is difficult to see inside the pothole. One of the photographs is taken from the
vantage point of Jessica and plaintiff as they entered the crosswalk and approached the pothole. In
this photograph, the scooter is standing upright inside the pothole. The depth of the pothole is
difficult to discern from the photograph, but it does not seem to be particularly deep; the scooter
appears virtually level with the street even though it is standing in the pothole. Jessica testified that
the reflection off the water made it appear as if it was just a puddle on a flat surface of the
crosswalk.
¶ 11 Plaintiff’s paternal aunt, Morgan Hoffman, testified that the intersection where plaintiff
fell was one block from where she lived in 2019, and she frequently crossed that street. When
shown a photograph of the intersection, Hoffman identified a “hole” on the “park side” which had
been there for a “long time,” starting small and becoming bigger. She did not call defendant or the
alderman to report the hole, but remembered it always being there and stepping around it. Hoffman
had not observed anyone fall due to the defect.
¶ 12 Thomas Casa, an asphalt dispatcher for defendant, testified that paving season begins in
April and ends by Thanksgiving. Once paving season ends, the paving crews become pothole
crews and Casa may have up to 12 crews in his 13-ward district.
¶ 13 On February 14, 2019, 46 potholes were filled at 3451 South Wallace and the surrounding
block, 2 potholes were filled at 3551 South Wallace and the surrounding block, 24 potholes were
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filled at 3635 South Wallace and the surrounding block, and 63 potholes were filled at 3551 South
Wallace and the surrounding block.
¶ 14 Casa was shown the photographs of the crosswalk and pothole. Casa stated that he was
unable to determine the depth of the pothole from the photographs, but that it “looks shallow.”
Repair to the pothole would only have taken a couple of minutes and half a shovel of cold mix.
¶ 15 Anthony Scumaci testified that he had worked as an asphalt foreman for defendant since
2008. Scumaci identified a “daily asphalt pothole activity sheet” from February 14, 2019, which
stated that 439 potholes were filled. Although 3551 South Wallace appeared as an address, that
did not necessarily mean a pothole was at that location. He walked the blocks from 37th to 35th
with the crew to make sure all potholes were filled, so he would have walked through the
intersection of 35th and Wallace. He had no independent recollection of the crew filling the pothole
in the crosswalk, but asserted that he did not miss potholes because he took his job seriously.
¶ 16 Defendant filed an answer and affirmative defenses. Defendant then sought leave to file a
counterclaim for contribution against Jessica alleging that she negligently failed to supervise
plaintiff at the time of his injury. The trial court granted defendant leave to file the counterclaim
over plaintiff’s objection. Plaintiff then filed a motion to dismiss the counterclaim as barred by the
parent-child tort immunity doctrine.
¶ 17 On February 10, 2022, defendant filed a motion for summary judgment alleging that it
owed plaintiff no duty of care where the dangerous condition—the pothole—was open and
obvious. Plaintiff thereafter moved for summary judgment on certain affirmative defenses,
alleging that defendant was not entitled to discretionary immunity when there was no evidence
that one of defendant’s employees knew of the pothole and decided not to fix it, and that plaintiff
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was entitled to summary judgment on defendant’s comparative negligence claim, as he was only
four years old at the time of the accident.
¶ 18 On February 14, 2022, defendant filed a first amended answer and affirmative defenses
alleging, relevant here, that the “property described” in plaintiff’s complaint was maintained in
reasonably safe condition, that defendant lacked actual or constructive notice of any alleged defect,
and that the defect was repaired on February 14, 2019. Additionally, plaintiff was injured because
of Jessica’s negligence in failing to properly watch for an “area in the public way” that was open
and obvious.
¶ 19 On April 12, 2022, the trial court addressed defendant’s motion for summary judgment.
The trial court determined that no genuine issue of material fact existed as to the pothole or the
events preceding plaintiff’s fall, and therefore, the question was whether the pothole constituted
an open and obvious danger as a matter of law. The court concluded that the photographs included
as exhibits in Jessica’s deposition show a clearly visible pothole, and the presence of water in the
pothole did not render the danger less open or obvious. Moreover, even if plaintiff was too young
to appreciate the danger posed by the pothole, he was under Jessica’s supervision and she had the
duty to protect him from the open and obvious danger it posed. The court found the distraction
exception inapplicable when, although Jessica may have been preoccupied by traffic as the family
entered the crosswalk, it was not objectively reasonable to expect that traffic would cause her to
fail to see the pothole and recognize the danger. The court further noted that potholes and similar
pavement imperfections are a “fact of life in Chicago.”
¶ 20 To the extent plaintiff argued that the existence of an open and obvious danger was not a
per se bar to a finding of duty, the court found that in this case, given the nature and ubiquity of
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potholes in Chicago, protecting all pedestrians from their danger would place an “immense
burden” on defendant and require a “massive” allocation of resources. The court therefore
concluded that defendant did not owe plaintiff a duty to protect him from the open and obvious
danger posed by the pothole, and granted defendant’s motion for summary judgment. Based upon
the grant of summary judgment in defendant’s favor, the court found all remaining motions moot.
¶ 21 On appeal, plaintiff contends that the trial court erred when it found that the condition that
caused his injury was open and obvious to his supervising parent and, therefore, defendant did not
owe him a duty of care. Plaintiff contends that it was reasonably foreseeable that a child would be
injured riding a scooter over the pothole in the crosswalk even if supervised by a parent. He further
contends that defendant owed him a higher duty of care because it knew children frequented the
area, and that defendant’s duty of care to a child is not absolved merely because the child is
supervised by a parent.
¶ 22 Summary judgment is proper where “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). “To survive a motion for summary judgment, the nonmoving party need not prove his case
at this preliminary stage of litigation; however, the plaintiff must present some evidentiary facts to
support each element of his cause of action, which would arguably entitle him to a judgment.”
Marquardt v. City of Des Plaines, 2018 IL App (1st) 163186, ¶ 16.
¶ 23 “On appeal from an order granting summary judgment, a reviewing court must consider
whether the existence of a genuine issue of material fact should have precluded the dismissal or,
absent such an issue of fact, whether summary judgment is proper as a matter of law.” Monson v.
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City of Danville, 2018 IL 122486, ¶ 12. We review the trial court’s grant of summary judgment de
novo. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).
¶ 24 In a negligence action, a plaintiff must plead and prove the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the breach.
Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. “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 R.R.
Co., 2012 IL 112948, ¶ 22; see also Ward v. Kmart Corp., 136 Ill. 2d 132, 140 (1990). Absent a
duty, a plaintiff cannot recover on his negligence claim. Choate, 2012 IL 112948, ¶ 22.
¶ 25 When evaluating whether a duty exists a court should consider (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 the burden on the defendant.
Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 18; see also Kun Mook Lee v. Young
Rook Lee, 2019 IL App (2d) 180923, ¶ 13 (the court should consider whether a relationship existed
between the parties that imposed a legal obligation upon the defendant for the benefit of the
plaintiff). The weight to be given to these factors depends on the circumstances of each particular
case. Simpkins, 2012 IL 110662, ¶ 18.
¶ 26 The Local Governmental and Governmental Employees Tort Immunity Act provides that
defendant, as a “local public entity,” “has the duty to exercise ordinary care to maintain its property
in a reasonably safe condition.” 745 ILCS 10/3-102(a) (West 2020). Defendant does not, however,
have a duty to protect against injury from a dangerous condition that is open and obvious. Rexroad
v. City of Springfield, 207 Ill. 2d 33, 44 (2003). An open and obvious condition is one where the
condition and risk are apparent to, and appreciated by, a reasonable person “exercising ordinary
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perception, intelligence, and judgment.” (Internal quotation marks omitted). Deibert v. Bauer
Brothers Construction Co., 141 Ill. 2d 430, 435 (1990).
¶ 27 Defendant argues that the four-year-old plaintiff was old enough to appreciate the open and
obvious risk of riding his scooter over the pothole filled with water and, as such, that it owed him
no duty of care. Our supreme court has held that a landowner has the duty to remedy a dangerous
condition on its premises that is “likely to cause injury to the general class of children who, by
reason of their age and immaturity, would not be expected to comprehend and avoid the attendant
risks.” Choate, 2012 IL 112948, ¶ 31. The landowner has no duty to remedy a dangerous condition
presenting “obvious risks that children generally of the plaintiff’s age would be expected to
appreciate and avoid.” (Emphasis in original). The landowner may rely on the assumption that “
‘any child old enough to be allowed at large by his parents will appreciate certain obvious dangers
or at least make his own intelligent and responsible choice concerning them.’” (Emphasis added)
Id. (quoting Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110,
117 (1995)). Obvious dangers include fire, drowning in water, or falling from a great height. Id. ¶
32.
¶ 28 In the case at bar, plaintiff was not old enough to be “at large” crossing a crosswalk on his
scooter by himself, but instead was a four-year-old under the supervision of his parent and as such,
defendant could make no assumptions about his general ability to perceive any obvious danger
arising from the pothole. Furthermore, the danger posed by the pothole did not involve fire,
drowning, a fall from a great height, or any other obvious danger that has been held to be
appreciable even by a child of a tender age; rather, the danger posed was a fall on the uneven
surface of the pothole. However, the uneven surface and the depth of the pothole is not readily
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apparent from the photograph of the crosswalk and pothole as seen from plaintiff’s perspective,
and Jessica testified that the water inside the pothole made it appear to be merely a puddle on a
flat surface of the crosswalk. We decline to hold as a matter of law that the four-year-old plaintiff
should have perceived the open and obvious danger of riding his scooter over what arguably
appeared to him to be a mere puddle of water. At the very least, a question of fact exists regarding
whether the danger presented was open and obvious to the four-year-old plaintiff. See also Prosser
and Keeton on The Law of Torts at 407-408 (W. Page Keeton et al. eds., 5th ed. 1984) (“When an
infant of three or four is known to be in the vicinity of fire or water, or other dangerous conditions,
it is ‘pure fantasy, straight from outer space’ to say that he will be fully able to protect himself
against them.”).
¶ 29 Defendant also argues that, even assuming plaintiff was too young himself to appreciate
the open and obvious risk of riding his scooter over the pothole, defendant breached no duty of
care to him because it reasonably could rely on his supervising parent, Jessica, to appreciate the
risk and steer plaintiff away from it. Defendant posits that the photographs depicting the crosswalk
indisputably show the physical nature of the dangerous condition, i.e., the pothole filled with water,
which as a matter of law should have been open and obvious to Jessica.
¶ 30 Whether a dangerous condition is open and obvious is a question of law when no dispute
exists as to the physical nature of the condition. 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.” (Emphasis added). Wilfong v. L.J. Dodd
Construction, 401 Ill. App. 3d 1044, 1053 (2010). In this context, “obvious” means that both the
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condition and the risk are apparent and recognizable by a reasonable person. Bruns, 2014 IL
116998, ¶ 16.
¶ 31 The photographs of the crosswalk contained in the record on appeal are from a number of
different vantage points, but the relevant one is the photograph depicting the pothole from the
vantage point of Jessica and plaintiff as they were entering the crosswalk side by side and as they
were approaching the pothole. That photograph depicts the scooter standing inside a pothole in the
crosswalk, but the depth of the pothole, i.e., the risk to plaintiff that he might fall if he were to ride
his scooter over the pothole, cannot easily be discerned. The scooter appears almost level with the
street even though it is standing in the pothole. Defendant’s employee, Casa, testified that the
photographic evidence was inconclusive as to the depth of the pothole but that it appeared shallow.
Jessica testified that “the pothole had water in it and then there was the reflection, so it looked flat”
and that the water prevented one from seeing the depth of the pothole.
¶ 32 The difficulty in assessing the depth of the pothole and of the concomitant risk posed in
riding a scooter over it presents a question of fact as to its open and obvious nature. Alqadhi, 405
Ill. App. 3d 14, is informative. There, the plaintiff tripped and fell over a 3/4 -inch rise in concrete
on a ramp near the exit to defendants’ garage. Id. at 15. Defendants moved for summary judgment
on the basis that the condition causing the plaintiff’s injury was open and obvious. Id. Defendants
contended that the area was “well lit” and that the pavement was smooth and that the rise in
concrete was visible. Id. at 18. The plaintiff responded by pointing to her own deposition testimony
that the dim lighting in the garage and the lack of color contrast in the raised concrete created the
optical illusion of a flat walking surface. Id. at 16. The trial court granted summary judgment for
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defendants. Id. at 16. We found that the visibility of the condition was in dispute, and therefore
reversed the grant of summary judgment and remanded for further proceedings. Id. at 19.
¶ 33 Similarly, in the instant case, the visibility of the depth of the pothole was in dispute such
that we cannot say as a matter of law that the risk posed to plaintiff in riding his scooter over the
pothole was so open and obvious to Jessica as to obviate defendant’s duty of care.
¶ 34 Even if the risk posed to plaintiff in riding his scooter over the pothole was open and
obvious to Jessica, there is also a question of material fact as to whether the distraction exception
to the open and obvious doctrine applies here. The distraction exception applies when defendant
reasonably could foresee that Jessica might be so distracted when approaching the pothole that she
would fail to protect plaintiff from riding his scooter over it. Negron v. City of Chicago, 2016 IL
App (1st) 143432, ¶ 17. Jessica testified to just such a distraction, specifically, that she was
watching vehicular traffic on her left when plaintiff rode his scooter over the pothole and fell.
Jessica’s testimony raises a question of material fact as to whether defendant reasonably should
have foreseen that a parent accompanying her children across the crosswalk would be checking
for traffic on the adjoining city street and, hence, be so distracted as not to notice the pothole at
their feet.
¶ 35 Defendant argues that it did not create the distraction, i.e., the vehicular traffic, and thus it
should not be held responsible therefor. However, a showing that defendant somehow contributed
to the distraction is not required for the exception to apply, as long as the distraction is reasonably
foreseeable. Id. ¶ 20; Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 45 (2004).
¶ 36 Defendant also argues that vehicular traffic is a commonplace event, and that where a
distraction is a commonplace event that could occur anywhere, landowners generally are not
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required to guard against it. Id. ¶ 19. The rationale is that defendant could not reasonably anticipate
that a commonplace event would be so distracting as to divert a plaintiff’s attention away from an
open and obvious danger. See Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1031 (2005)
(defendant owes no duty to plaintiff to prevent her from being injured by an open and obvious
danger, even where she was distracted at the time of injury, where the distraction could not
reasonably be anticipated). In the present case, though, a question of material fact exists as to
whether defendant reasonably should have anticipated and foreseen Jessica being distracted by the
ordinary vehicular traffic approaching her as she was leading her children across the crosswalk.
Specifically, the evidence here shows that defendant placed the crosswalk across a city street, near
a park frequented by children and their parents, knowing that parents would be crossing the
crosswalk with their children; Casa testified to seeing children riding scooters in the crosswalk.
The vehicular traffic at issue here was not some distance away from the crosswalk, posing no
immediate safety risk to Jessica or her children; rather, Jessica was taking note of an automobile
to her immediate left, ensuring that it was coming to a stop before she and her children (including
plaintiff) utilized the crosswalk to cross the street. On these facts, there is a question as to whether
defendant reasonably should have foreseen and anticipated that the vehicular traffic near the
crosswalk would be so distracting as to cause Jessica not to notice the pothole prior to plaintiff’s
riding his scooter over it.
¶ 37 Application of the open and obvious rule (and the distraction exception) affects the first
two elements of the duty analysis: the foreseeability of harm and the likelihood of the injury.
Where the dangerous condition is open and obvious, and the distraction exception is not applicable,
the foreseeability of harm and the likelihood of injury is slight, thereby weighing against the
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imposition of a duty. Bruns, 2014 IL 116998, ¶ 19. However, as we have discussed, there is a
question of material fact here as to the open and obvious nature of the pothole (as well as the
applicability of the distraction exception) and the risk that the pothole posed to plaintiff as he rode
his scooter over it.
¶ 38 The third and fourth elements of the duty analysis are the magnitude of guarding against
the injury and the consequences of placing that burden on defendant. Id. ¶ 14. Defendant argues
that it should not be required to guard against open and obvious potholes in crosswalks, as
defendant’s limited resources would be better served in protecting against less obvious (and hence,
more dangerous) roadway hazards “that pose the most serious safety risks.” As discussed, though,
a question of fact exists as to whether the pothole here was open and obvious and, thus, easily
avoidable or whether it was a type of roadway hazard posing the most serious safety risks. Also,
Casa testified that numerous potholes were repaired in the area surrounding the crosswalk three
months prior to plaintiff’s injury, and that the repair here to the pothole in the crosswalk would
have taken only a couple of minutes and half a shovel of cold mix. At the very least, there is a
question of material fact regarding whether the magnitude and consequences of repairing the
pothole in the crosswalk were so onerous as to obviate defendant’s duty toward plaintiff.
¶ 39 For all the foregoing reasons, we reverse the grant of summary judgment in favor of
defendant and remand for further proceedings.
¶ 40 Reversed and remanded.
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