Menough v. Woodfield Gardens

THIRD DIVISION
May 6, 1998

No. 1-97-1596

JEFF MENOUGH, )
)
Plaintiff-Appellant, )
)
v. ) Appeal from the Circuit
) Court of Cook County.
WOODFIELD GARDENS, )
)
Defendant-Appellee, )
)
and )
)
LASALLE NATIONAL BANK, as Trustee, )
U/T/A dated 8/31/83, Trust ) Honorable Victoria A.
#106823, and LASALLE NATIONAL ) Steward, Judge Presiding.
BANK, as Trustee, U/T/A dated )
10/26/84, Trust #109040, )
)
Defendants. )

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

The plaintiff, Jeff Menough, brought this action to recover
for injuries he sustained while playing basketball on a
basketball court located on the property of the Woodfield Gardens
apartment complex. The trial court granted summary judgment to
Woodfield Gardens, hereinafter referred to as defendant,[fn1]
finding that the hazard which caused plaintiff's injury was open
and obvious. The plaintiff appeals contending that the hazard
was not open and obvious as a matter of law and, even if open and
obvious, the defendant nonetheless owed him a duty to make its
property reasonably safe. For the reasons discussed below, we
reverse and remand.
Summary judgment is appropriate only where the pleadings,
affidavits, depositions, admissions, and exhibits show that there
is no genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West
1996); Glass v. Pitler, 276 Ill. App. 3d 344, 657 N.E.2d 1075
(1995). In ruling on a motion for summary judgment, the trial
court must construe the pleadings, depositions and affidavits in
the light most favorable to the nonmoving party. E.g., First
State Insurance Co. v. Montgomery Ward & Co., 267 Ill. App. 3d
851, 642 N.E.2d 715 (1994). If fair-minded persons could draw
different inferences from the undisputed facts, the issues should
be submitted to a jury to determine what inference seems most
reasonable. E.g., Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992); Anglin v.
Oros, 257 Ill. App. 3d 213, 628 N.E.2d 873 (1993). Appellate
review of an order granting summary judgment is de novo.
Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606,
663 N.E.2d 1 (1995); Shull v. Harristown Township, 223 Ill. App.
3d 819, 585 N.E.2d 1164 (1992).
The undisputed facts showed that the plaintiff, was injured
on June 13, 1991 while playing basketball in a lot at the
Woodfield Gardens apartment complex in Rolling Meadows, Illinois.
The basketball court at the complex consisted of a single pole
anchored inside a concrete-filled tire. The front half of the
tire extended in front of the pole, and the back half of the tire
extended behind the pole. The backboard and net were attached
directly to the pole. The backboard was flush with the pole so
that the tire extended to the front of the backboard and within
the area of play.
In his deposition, the plaintiff testified that he and Paul
Amos accompanied Kevin Pleasant, who was a resident of the
apartment complex, as his guests, to the basketball court of the
apartment complex to play a "pick-up" game. For about five
minutes, they watched a game in progress and then played the
winners of that game. During the course of play, the plaintiff
made a "lay-up shot" at the net. When his foot came down, it
landed on the tire, snapping plaintiff's ankle. The plaintiff
sustained a severe fracture and sprain in that ankle.
The plaintiff testified that he had not played on the
basketball court at the Woodfield Gardens apartment complex prior
to the date he was injured. He stated that he first became aware
of the tire under the basketball net when he fell on it. He
stated that no one warned him of the danger posed by the tire.
The plaintiff, who was 22 years old at the time of his injury,
testified that prior to June 1991 he had played grade school park
district basketball, high school league basketball and college
intramural basketball.
In its motion for summary judgment, defendant Woodfield
Gardens argued that the risk of harm posed by the tire was open
and obvious and that, as a result, it owed no duty to the
plaintiff to remedy that condition. It further argued that the
"distraction or forgetfulness" exception to the open and obvious
doctrine, articulated in Ward v. K Mart Corp., 136 Ill. 2d 132,
554 N.E.2d 223 (1990) and Deibert v. Bauer Brothers Construction
Co., 141 Ill. 2d 430, 438-39, 566 N.E.2d 239, 243 (1990), did not
apply under the facts presented. The plaintiff responded by
arguing that the dangerous condition caused by the construction
and configuration of the net, backboard and pole was not open and
obvious to the plaintiff or to any reasonable person. The court
granted defendant's motion for summary judgment.
Under the Premises Liability Act, an owner or occupier of
premises owes a duty of "reasonable care under the circumstances"
to entrants who are not trespassers. Ill. Rev. Stat. 1991, ch.
80, par. 302 now codified at 740 ILCS 130/2 (West 1996). Whether
one person owes another a duty of reasonable care under a
particular set of circumstances is an issue of law for the court.
E.g., Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826 (1996); Ward, 136 Ill. 2d 132, 554 N.E.2d 223. Under
Illinois law, persons who own, occupy or control and maintain
land are not ordinarily required to foresee and protect against
injuries from potentially dangerous conditions that are open and
obvious. Bucheleres, 171 Ill. 2d at 447-48, 665 N.E.2d at 832.
The law generally assumes that persons who encounter conditions
such as fire, height and bodies of water will take care to avoid
any danger inherent in such conditions. Bucheleres, 171 Ill. 2d
at 448, 665 N.E.2d at 832. See Ward, 136 Ill. 2d at 148, 554 N.E.2d at 230, stating,
"Certainly a condition may be so blatantly obvious and
in such position on the defendant's premises that he
could not reasonably be expected to anticipate that
people will fail to protect themselves from any danger
posed by the condition."
The existence of an open and obvious condition is not a per
se bar to the finding of a legal duty, however. Bucheleres, 171 Ill. 2d at 449, 665 N.E.2d at 833; Ward, 136 Ill. 2d 132, 554 N.E.2d 223. As stated in section 343A of the Restatement
(Second) of Torts, cited with approval by our supreme court in
Ward, 136 Ill. 2d at 149-51, 554 N.E.2d at 231-32:
"(1) 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."
Restatement (Second) of Torts 343A (1965).
According to comment f to that section, also cited in Ward,
"[R]eason to expect harm to visitors from known or
obvious dangers may arise '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. * * * In such cases the
fact that the danger is known, or is obvious, is
important to determining whether the invitee is to be
charged with contributory negligence, or assumption of
risk. It is not, however, conclusive in determining
the duty of the possessor, or whether he has acted
reasonably under the circumstances.' Restatement
(Second) of Torts 343A, comment f, at 220 (1965)."
Ward, 136 Ill. 2d at 149-50, 554 N.E.2d at 231.
In Ward, the court found that the defendant owed the
plaintiff a duty of care despite the fact that the concrete post
on the defendant's property was open and obvious. In reaching
this conclusion, the court relied upon section 343A and comment f
thereto of the Restatement (Second) of Torts finding those
principles relevant to the issue of foreseeability of the injury.
In that regard the court found:
"[I]t was reasonably foreseeable that a customer would
collide with the post while exiting defendant's store
carrying merchandise which could obscure view of the
post. * * * It was also reasonably foreseeable that a
customer carrying a large item which he had purchased
in the store might be distracted and fail to see the
post upon exiting through the door." Ward, 136 Ill. 2d
at 153-54, 554 N.E.2d at 233.
Accord Deibert, 141 Ill. 2d at 438-39, 566 N.E.2d at 243
(imposing duty of reasonable care upon defendant who should have
reasonably anticipated that plaintiff would have been distracted
from five-inch rut in ground). Having found foreseeability of
injury, the Ward court continued its duty analysis by considering
the magnitude of the burden on the defendant to exercise
reasonable care to protect its customers from the risk of
colliding with the post. The court found that burden to be
slight stating that a simple warning may "serve to remove the
unreasonableness of the danger posed by the post." Ward, 136 Ill. 2d at 156, 554 N.E.2d at 234.
Returning to the instant case, the plaintiff argues on
appeal that the danger of falling on the tire which anchored the
pole holding the backboard and net was not open and obvious to
the plaintiff or to any reasonable person. The plaintiff further
argues that even if the danger was open and obvious, defendant
owed a duty of reasonable care because it should have anticipated
that a person playing basketball could injure himself by falling
on the tire. While we disagree with plaintiff's first
contention, we agree with plaintiff's second contention that the
defendant owed a duty of reasonable care to the plaintiff because
it was reasonably foreseeable that the plaintiff would have been
distracted and fail to see the tire.
A condition of danger on the land is obvious when "'both the
condition and the risk are apparent to and would be recognized by
a reasonable [person], in the position of the visitor, exercising
ordinary perception, intelligence, and judgment.'" Deibert, 141 Ill. 2d at 435, 566 N.E.2d at 241, quoting Restatement (Second)
of Torts 343A, comment b, at 219 (1965). The issue of whether a
condition is obvious is determined by the objective knowledge of
a reasonable person, not the plaintiff's subjective knowledge.
Deibert, 141 Ill. 2d at 435, 566 N.E.2d at 241. Here,
notwithstanding plaintiff's subjective deposition statement that
he did not notice the tire until he fell upon it, the pleadings,
depositions and exhibits showed that, objectively, the tire
surrounding the pole was not hidden or concealed. It was
obvious. Anyone coming upon the basketball court could see the
manner in which the pole and backboard were anchored into the
cement placed inside the tire shell. That person also could see
that a portion of the tire extended in front of the pole
underneath a part of the net. See Deibert, 141 Ill. 2d at 438,
566 N.E.2d at 243 (finding rut in ground obvious); Ward, 136 Ill. 2d at 152, 554 N.E.2d at 232 (finding concrete post obvious);
Peterson v. Aldi, Inc., 288 Ill. App. 3d 57, 679 N.E.2d 1291
(1997) (finding grocery store pallet open and obvious). There
was no contradictory testimony from which one could infer that
the tire was hidden or concealed.
However, as stated in Ward, the obviousness of the dangerous
condition may not relieve the landowner or possessor of land of
its duty of reasonable care if the landowner or possessor
reasonably could be expected to anticipate that individuals
exercising ordinary care will fail to avoid the risk of danger
because they are distracted or momentarily forgetful. Here as in
Ward, it was reasonably foreseeable that a basketball
player/entrant on the premises could step onto the tire that
extended underneath the basketball net immediately after
attempting to shoot the basketball into the net. The defendant
offered the basketball pole and backboard as an amenity to its
tenants and their guests. See Ward, 136 Ill. 2d at 154, 554 N.E.2d at 233 (where in discussing foreseeability, the court
noted that the defendant invited customers to use the door near
the concrete post). The defendant also would have reason to
believe that those individuals engaged in a competitive game of
basketball would become distracted while approaching the net with
the basketball to score a basket, forgetting the presence of the
tire which protruded into the area underneath the net. See
Prochnow v. El Paso Golf Club, Inc., 253 Ill. App. 3d 387, 625 N.E.2d 769 (1993) (finding duty by golf club to protect patrons
from golf balls; reasonably foreseeable that patrons could be
distracted by conversation and not anticipate danger of being
struck by golf ball). In addition to the reasonable
foreseeability of the injury, the burden upon the defendant of
protecting against the danger of injury would have been slight.
The defendant could have removed the tire and cemented the pole
directly into the ground.
Contrary to defendant's contention, the case of Oropeza v.
Board of Education, 238 Ill. App. 3d 399, 606 N.E.2d 482 (1992),
which applied the distraction doctrine to a basketball injury,
does not require a different result. In Oropeza, the plaintiff
alleged that he was injured while playing basketball upon
property owned by the defendant, a governmental entity. The
plaintiff alleged that the basketball court was in a dangerous
condition in that it contained visible trenches that were about
one inch deep and four inches wide which caused plaintiff to trip
while playing basketball. The trial court dismissed the
plaintiff's complaint for failure to state a cause of action; and
that dismissal was affirmed on appeal. There, because of
statutory sovereign immunity, the court found that the defendant
could only be liable for conduct that was willful and wanton.
Ill. Rev. Stat. 1987, ch. 85, par. 3-106 now codified at 745 ILCS
10/3-106 (West 1996). The court therefore held that the
distraction doctrine would not suffice to convert what may have
been defendant's ordinary negligence into negligence that was
willful and wanton. Oropeza, 238 Ill. App. 3d at 401, 606 N.E.2d
at 484. The court did not, however, disavow the fact that the
distraction doctrine would be sufficient to impose a duty, the
breach of which would subject the defendant to liability under a
standard of ordinary negligence. Here, unlike in Oropeza, the
defendant is not a public entity and can be liable for ordinary
negligence.
We also distinguish the case of Peterson v. Aldi, Inc., 288
Ill. App. 3d 57, 679 N.E.2d 1291 (1997), also cited by the
defendant. In that case the plaintiff sought to recover for
injuries she suffered when she tripped on a grocery store pallet.
The court affirmed the grant of summary judgment to the defendant
finding the pallet to be an open and obvious condition and
finding that there was no deposition testimony to suggest that
the plaintiff had been distracted. According to the court, the
plaintiff only testified that she "simply did not look down
before she started to walk around the grapefruit bin. Plaintiff
did not specify why she did not look down before moving around
the bin." 288 Ill. App. 3d at 67, 679 N.E.2d at 1298.[fn2]
Unlike in Peterson, deposition testimony in the instant case
clearly showed that the plaintiff was distracted. The plaintiff
testified that at the time he was injured he was playing
basketball. He testified that, while engaged in play, he
attempted a "lay-up" shot and landed on the tire. His attention
at that time was aimed at scoring a point, the purpose for which
the basketball hoop had been installed. Moreover, we note that
summary judgment in Peterson may well have been warranted by the
legislature's 1995 amendment to the Premises Liability Act. See
Pub. Act 89-7, 35, eff. March 9, 1995 (amending 740 ILCS 130/2
(West 1994)). That amendment added a second paragraph to section
2 of the Premises Liability Act which included the following
pertinent language:
"The duty of reasonable care under the circumstances
which an owner or occupier of land owes to such
entrants does not include any of the following: a duty
to warn of or otherwise take reasonable steps to
protect such entrants from conditions on the premises
that are known to the entrant, are open and obvious, or
can reasonably be expected to be discovered by the
entrant; * * *." 740 ILCS 130/2 (West Supp. 1995).
It was made effective to all causes of action accruing on or
after March 9, 1995, its effective date. 740 ILCS 130/2 (West
Supp. 1995).
The plaintiff in Peterson was injured on April 5, 1995.
While the defendant relied upon the amendatory act in support of
summary judgment, the court declined to reach that assertion,
finding instead that foreseeable distraction or forgetfulness was
not present under the facts presented. Peterson, 288 Ill. App.
3d at 66-67, 679 N.E.2d at 1297-98. It would appear that the
amendatory act foreclosed any inquiry into the foreseeability-of-
danger factors propounded by our supreme court in Ward and
Deibert and that it would have foreclosed the plaintiff's action
in Peterson. It would not foreclose the action in the instant
case since the plaintiff's injury here occurred in 1991, well
before the passage of that amendatory act.
Our finding of duty in the instant case does not, however,
require summary judgment in favor of the plaintiff. Questions of
fact exist regarding whether the defendant breached its duty and
whether the plaintiff was comparatively negligent. In that
regard, we note the following language from Ward:
"Whether 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.
The trier of fact may also consider whether the
plaintiff was in fact guilty of negligence contributing
in whole or in part to his injury, and adjust the
verdict accordingly." Ward, 136 Ill. 2d at 156-57, 554 N.E.2d at 234.
Accord Pullia v. Builders Square, Inc., 265 Ill. App. 3d 933, 638 N.E.2d 688 (1994) (the obviousness of the danger and plaintiff's
own negligence may affect whether and to what extent the
plaintiff is comparatively negligent, but they do not affect the
duty owed by the possessor of land). See also Duffy v.
Midlothian Country Club, 92 Ill. App. 3d 193, 415 N.E.2d 1099
(1980) (reversing summary judgment to defendant golf club and
golf association finding material questions of fact existed as to
whether defendants fulfilled their duty to plaintiff and whether
defendants' acts or omissions were the proximate cause of
plaintiff's injury).
For the foregoing reasons, the judgment of the Circuit Court
of Cook County is reversed and the cause is remanded for further
proceedings consistent with the views expressed herein.
Reversed and remanded.
CAHILL and BURKE, JJ., concur.
[fn1]Defendant LaSalle National Bank, as trustee, had been
dismissed from the action prior to the court's ruling on the
motion for summary judgement filed by defendant Woodfield
Gardens.
[fn2]With respect to the court's findings on the distraction
doctrine, we note the strong dissent of Justice Rathje which
found evidence of distraction. The dissent noted that the
plaintiff's testimony
"indicates that she was likely behaving as shoppers
typically do, i.e., she was intent upon the object(s)
of her interest.
Displays of goods, such as the grapefruit in the
bin, have been viewed as distractions possibly
requiring precautions." Peterson, 288 Ill. App. 3d at
68, 679 N.E.2d at 1298-99 (Rathje, J., dissenting).