Citizens of the north, if you have lived here for more than a year or two you should now fully understand that sidewalks, parking lots and pavement/cement in general is not, cannot and will never be perfectly flat. In the north we have something called winter. During winter, there is snow, rain, ice, freezing temperatures, thawing and freezing again. These events wreak havoc on our sidewalks, roads and parking lots. If you insist on having perfectly flat surfaces at all times, please understand your property taxes will sky rocket, your fast food hamburger will cost $20, your cup of coffee will cost $30 and a new pair of jeans will be $300.
If you prefer not to pay those increased prices, here is my advice:
- Be responsible for yourself and look where you are walking. Quit looking at your phone and look where you are walking. It’s not difficult.
- Quit expecting everything to be perfect.
- If you fall, determine if you could have prevented it yourself before you blame others.
- If you fall, measure the height differentiation and if it’s under 2 inches, don’t lie about it, just deal with it and move on with your life.
There are two recent decisions involving sidewalks in the City of Chicago that help bring home these points and offer hope to defendant landowners– Negron v. City of Chicago, 2016 IL App (1st) 143432 and Burns v. City of Chicago, 2016 IL App (1st) 151925.
Negron v. City of Chicago
In Negron, the plaintiff was walking down a sidewalk while a large crowd was celebrating across the street. The plaintiff heard someone yell “Everyone hit the floor,” causing her to look over her shoulder. The plaintiff kept walking while she looked over her shoulder and after a few steps she tripped and fell. The plaintiff claimed the height differentiation between the slabs of concrete was 2 inches, so a de minimus argument was not made by the defense.
Instead, the City argued the raised concrete was open and obvious and the City did not contribute to, and could not have foreseen, the plaintiff’s distraction so it was not liable. Summary judgment was granted for the City and it was upheld on appeal. The opinion does a very nice job of explaining the distraction exception and when it should be applied, since plaintiffs often argue any distraction is sufficient to create an exception.
The court evaluated whether the distraction was foreseeable because the distraction exception only applies where “it is reasonably foreseeable a plaintiff might be so distracted that she blunders into an open and obvious danger.” The mere possibility that someone might be distracted does not make the distraction legally foreseeable. “Foreseeability means that which is objectively reasonable to expect, not merely what might conceivably occur.” The Illinois Supreme Court specifically ruled landowners are not required to keep their property injury-proof. Ward v. Kmart Corp., 136 Ill.2d 132 (1990).
The court determined that where the distraction at issue is a commonplace event that could occur anywhere, landowners are not required to guard against it. This includes a plaintiff’s “personal inattentiveness.” The court also looked at whether the City created or contributed to the distraction, because that is a highly relevant factor when assessing foreseeability.
Surprisingly, the plaintiff did not dispute a 2 inch raised sidewalk slab was open and obvious and the court agreed with that assessment. The basis was that it was light outside and there was nothing obstructing the plaintiff’s view of the sidewalk. (Note: This was not a primary issue in the case but something that will definitely be valuable to defendants in the future).
Burns v. City of Chicago
The plaintiff in Burns tripped and fell on a section of crosswalk that was ADA compliant – the tile of truncated domes aligned in a pattern to provide sensory notification of the road. The plaintiff estimated the tile was raised 1 ½ inches but a formal measurement showed it was only raised ¾ of an inch. The plaintiff admitted he walked over the crosswalk at least once a week and never noticed the raised tile before he fell.
Summary judgment was granted and upheld for the City because the raised tile was de minimus, the City had no notice the tile was raised and the condition was open and obvious.
De Minimus: There was little question the height differentiation in this case was insubstantial and de minimus so the plaintiff argued there were aggravating circumstances making it actionable. The appellate court disagreed, finding the slight decline of the sidewalk to be typical. The court also ruled it would not be reasonable to find ADA compliant tiles to be an aggravating factor, since they are required to assist the visually impaired.
Notice: The parties agreed there was no actual notice but the plaintiff argued the raised tile was present long enough to create constructive notice. In response, the City showed the tiles were installed in 2010 and in July, 2011 a Google Map photograph showed the tile was not raised. The plaintiff also confirmed he walked by the tile weekly and never noticed it raised. This was sufficient to show the City did not have constructive notice of the raised tile.
Open & Obvious: The tiles were a different color than the sidewalk and made to purposefully provide a sensory cue of their existence. The court determined a reasonable person exercising ordinary perception, intelligence and judgment would recognize the tiles and the ramp as she approached the crosswalk. The court also noted the tiles were open and obvious by design.
I would warn that the court’s open and obvious finding is not something that would likely be given to a private landowner. Within its analysis, the court specifically distinguished this case from one cited by the plaintiff, noting that ruling was different because it involved a private garage and not a city with miles of sidewalks.
Many aspects of these rulings are well written and will be very useful for defendants moving for summary judgment, especially in Cook County.
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