Rivas v. Westfield Homes of Illinois, Inc.

No. 2--97--0545
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

GIL RIVAS and JO ANN RIVAS, ) Appeal from the Circuit Court
) of Lake County.
Plaintiffs-Appellants, )
)
v. ) No. 95L1452
)
WESTFIELD HOMES OF ILLINOIS, )
INC., )
)
Defendants-Appellees )
)
(Edward Hamming, Indiv. and as )
an Employee of Saint Therese )
Medical Center; and Saint ) Honorable
Therese Medical Center, ) Bernard E. Drew,
Defendants). ) Judge, Presiding.
________________________________________________________________

JUSTICE COLWELL delivered the opinion of the court:
The plaintiffs, Gil Rivas and Jo Ann Rivas, filed a complaint
against the defendant Westfield Homes of Illinois, Inc.
(Westfield), alleging that Westfield breached a duty of reasonable
care that proximately caused an injury to Mr. Rivas s ankle. The
trial court determined as a matter of law that Westfield did not
owe the plaintiffs a duty of care. Accordingly, it granted the
defendant s motion for summary judgment, from which the plaintiffs
now appeal. We affirm.
The record shows that the plaintiffs entered into a contract
with Westfield for the construction of a new home in Gurnee,
Illinois. Throughout the course of the construction, the
plaintiffs visited the construction site to inspect the progress of
the house. Some of these visits were arranged through a Westfield
representative to discuss certain aspects of the construction,
while, on some occasions, the plaintiffs visited the site on their
own. The parties dispute whether the plaintiffs were permitted to
visit their future home during construction without an appointment.
On Friday, September 3, 1993, the plaintiffs visited the site
to meet Tom Lawler, the Westfield superintendent, for a pre-
drywall inspection. Mr. Rivas testified in a deposition that he
did not see any drywall on the premises on that date. Mr. Rivas
stated that he spent an hour or two on the site and talked with
Lawler about several items, including the light fixtures in the
dining room. Mr. Rivas said that Lawler answered all his questions
satisfactorily. Whether Mr. Rivas would be visiting the site the
following week, when the drywall was to be installed, was not
discussed. Rivas testified, however, that he understood that the
installation of the drywall would begin the following week.
On Saturday, September 4, the day after Mr. Rivas s visit with
Lawler, Mr. Rivas visited the construction site with his wife. Mr.
Rivas testified that he did not inform anyone at Westfield that he
was making the visit. No one from Westfield was at the site. Mr.
Rivas stated that he and his wife went to the house to make sure
that there were not any other issues with the house before the
drywall was installed.
Mr. Rivas said that, after looking at the house, he and his
wife began cleaning up some of the construction debris. He also
spoke with a neighbor. Mr. Rivas stated that, unlike on Friday, he
noticed drywall on the site on Saturday. Mr. Rivas added that the
drywall was in virtually every room and that it was on its side
stacked at an angle up against the walls.
Mr. Rivas testified that, after a couple of hours on the site,
he and his wife entered the living room. Mr. Rivas stated that he
and his wife started looking at the insulation around the window
frames of the house. Near one window was a stack of drywall that
leaned against the wall. The drywall was approximately « inch
thick and measured 4 feet wide and 12 feet in length. Each sheet
weighed approximately 70 pounds, and approximately 19 sheets were
stacked against the wall at a 30ø angle.
Mr. Rivas testified that there was nothing about the way the
drywall was positioned that suggested it created a hazard. Mr.
Rivas acknowledged, however, that he did not know the approximate
weight of a piece of drywall. Further, Mr. Rivas acknowledged that
he knew it was important to be careful around the house while it
was being constructed.
Mr. Rivas stated that he walked toward one of the windows to
inspect it. The drywall covered the bottom of the window, as the
window was only a foot off the floor, and the drywall was 4 feet
tall. While looking at the frame, Mr. Rivas rested his hand on top
of the stack of drywall, and he tried to peer over and behind the
drywall to look at the window frame. Mr. Rivas acknowledged that
he attempted to pull the drywall away from the window so that he
could get a look at the frame. He stated that he did not remember
whether he used one or two hands in pulling the drywall away from
the window. As he was touching the drywall, however, the drywall
started to tip forward away from the wall. Mr. Rivas attempted to
back out of the way, but the drywall fell on top of his ankles,
pinning him to the floor.
Patricia Lowe, the neighbor who was in the house on the day of
the accident, testified that she did not see either Mr. Rivas or
Mrs. Rivas touch the drywall earlier in the day. Lowe stated that,
as Mr. Rivas was near the window and started to look at it, Mrs.
Rivas told him not to touch the drywall because it was heavy. Lowe
said that she saw the stack of drywall fall on top of Mr. Rivas.
As the stack was falling, Mr. Rivas put his hands up to try to
catch it, but the stack fell on top of him. Lowe said that the
stack fell on Mr. Rivas so that all his body below his shoulders
was covered by the drywall.
Mrs. Rivas s testimony in her deposition supported Mr. Rivas s
version of events. Contrary to Lowe s testimony, Mrs. Rivas stated
that she never told Mr. Rivas that the drywall was heavy. Further,
Mrs. Rivas stated that the drywall covered Mr. Rivas up to his
knees, not to his shoulders.
Mrs. Rivas also expanded on the events leading up to the
accident. Mrs. Rivas explained that she looked across the room at
her husband and saw him putting his hand on the drywall. Mrs.
Rivas stated that she shouted at Mr. Rivas as she saw him attempt
to pull away the drywall. Approximately three seconds later,
however, the stack of drywall fell on top of him. Mrs. Rivas added
that she shouted at her husband to stop because, although she did
not know how heavy the drywall was, she thought it was a possibly
dangerous situation.
Westfield filed a motion for summary judgment claiming that
Mr. Rivas was the sole cause of his accident. Westfield asserted
that it did not owe a duty to warn Mr. Rivas that the drywall was
heavy or to tell him not to touch the drywall, because the drywall
was an obvious danger. The trial court agreed with Westfield and
granted its motion.
On appeal, the plaintiffs contend that Westfield owed them a
duty of care because the stack of drywall was not an open and
obvious danger. In the alternative, the plaintiffs assert that,
even if the stack can be considered an open and obvious danger, the
defendant owed them a duty under one of the law s exceptions.
Summary judgment is appropriate only when the pleadings,
depositions, and admissions on file, together with affidavits, if
any, disclose that there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of
law. Bolingbrook Equity I Limited Partnership v. Zayre of
Illinois, Inc., 252 Ill. App. 3d 753, 764 (1993). While plaintiffs
need not prove their cases at the summary judgment stage, they must
come forward with some facts that would arguably entitle them to
judgment. Jones v. Minster, 261 Ill. App. 3d 1056, 1059 (1994).
Indeed, summary judgment is a drastic measure and should be granted
only if the movant's right to judgment is clear and free from
doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Therefore, where a reasonable person can
draw divergent inferences from undisputed facts, summary judgment
should be denied. Outboard, 154 Ill. 2d at 102. Finally, our
review of the trial court's entry of summary judgment is de novo.
Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill.
App. 3d 697, 701 (1996).
A complaint based upon negligence must allege facts sufficient
to show the existence of a duty owed by the defendant to the
plaintiff, the breach of that duty, and injury proximately
resulting from the breach. Burse v. CR Industries, Inc., 288 Ill.
App. 3d 48, 52 (1997). Whether a duty exists is a question of law
for the court and depends upon whether the parties stood in such a
relationship that the law would impose an obligation upon the
defendant to act reasonably for the plaintiff s protection. Ward
v. K Mart Corp., 136 Ill. 2d 132, 140 (1990).
Our supreme court has adopted the rule set forth in sections
343 and 343A of the Restatement (Second) of Torts regarding the
duty of landowners to their invitees. See Ward, 136 Ill. 2d at
145-46. Section 343 provides:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only
if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize
the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them
against the danger. Restatement (Second) of Torts 343, at
215-16 (1965).
Ward, 136 Ill. 2d at 145-46.
Westfield argues that the plaintiffs acknowledged the
existence of drywall throughout the house and in front of the
window. Therefore, it should not be held liable for Mr. Rivas s
injuries. This argument leads us to section 343A(1) of the
Restatement (Second) of Torts, which states:
(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(1), at 218
(1965).
Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435-36
(1990).
According to the Restatement, known means not only knowledge
of the existence of the condition or activity itself but also the
appreciation of the danger it involves. Fearheiley v. Summers, 246
Ill. App. 3d 86, 90 (1993). Obvious means that 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.
We find that, under these principles, the stack of drywall was
an open and obvious danger that Westfield was not obligated to
protect the plaintiffs against. Specifically, we find that there
was no reason that Westfield should have expected that the
plaintiffs would not have discovered or realized the danger of the
stack of drywall. Indeed, a reasonable visitor to a construction
site would appreciate the danger associated with an unfinished
house. Further, the drywall panels were significant in size (4
feet by 12 feet) and were leaning against a wall. We believe that
a person exercising ordinary perception, intelligence, and judgment
would have known of the possibility of the stack tipping and
falling if moved. Consequently, Westfield did not owe the
plaintiffs a duty to protect them against the stack of drywall.
The plaintiffs contend that, even if the stack of drywall was
an open and obvious danger, that fact does not serve as a per se
bar to their negligence claim. We agree with this principle of
law.
Historically, landowners owed no legal duty to take
precautions or warn against risks that were open and obvious
conditions on the land. See Genaust v. Illinois Power Co., 62 Ill. 2d 456 (1976). In Ward, however, our supreme court altered this
rule by holding that the open and obvious doctrine no longer
operated as a per se bar to a landowner s reasonable duty of care.
Ward, 136 Ill. 2d at 145. Accordingly, there are now two
exceptions to the open and obvious rule -- the distraction
exception and the deliberate encounter exception.
The plaintiffs acknowledge that the deliberate encounter
exception is inapplicable to the facts of this case. Accordingly,
we address only whether the plaintiffs have met the requirements
under the distraction exception. Under the distraction exception,
a landowner s duty of care is not negated by an open and obvious
condition when the landowner has reason to expect that the
invitee s attention may be distracted from such a condition. See
American National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14, 27-29 (1992).
For example, in Deibert v. Bauer Brothers Construction Co.,
141 Ill. 2d 430 (1990), our supreme court held that the defendant
owed the plaintiff a duty, even though the plaintiff s injury arose
from an open and obvious danger, because the defendant should have
foreseen that the plaintiff could have been distracted from the
danger. In Deibert, the plaintiff tripped in a rut outside a
bathroom door at a construction site. Instead of looking down at
the rut as he exited the bathroom, the plaintiff was looking above
him because other workers often threw construction panels off a
balcony near and above the bathroom. The Deibert court explained
that, under such circumstances, a reasonable person would have been
distracted from the rut. Deibert, 141 Ill. 2d at 438-40.
Similarly, in Ward, our supreme court held that the plaintiff
could recover under the distraction exception for injuries he
sustained while walking into a five-foot-tall post near an exit
door of a department store. The court explained that, although the
post was in plain view, the store should have foreseen that a
customer could collide with it while carrying merchandise from the
store. Therefore, even though the post was obvious, the store had
a duty to warn the plaintiff against or otherwise protect the
plaintiff from the danger of the post. Ward, 136 Ill. 2d at 155-
56.
We find that this case is distinguishable from Ward, Deibert,
and other distraction-exception cases. In those cases, the
plaintiffs were either distracted by some event or thing that was
out of their control or forgot that the danger existed. For
example, in Deibert, the plaintiff was distracted by the
possibility of falling construction panels, a real danger.
Meanwhile, in Ward, the plaintiff was carrying a large object in
front of him and could not see the pole. The Ward court said that,
under the circumstances, it was reasonably foreseeable that a
customer would forget about the pole. Ward, 136 Ill. 2d at 152-
53.
In this case, however, there was no outside event or thing to
draw Mr. Rivas s attention from the drywall. Indeed, in his
deposition Mr. Rivas did not state that he failed to discover the
drywall, forgot about the drywall while he was looking at the
window, or that he inadvertently bumped into it, which caused it to
tip over. See Deibert, 141 Ill. 2d at 435-36 (test is whether
landowner had reason to expect that plaintiff would be distracted
in such a way that he would forget about the obvious danger, fail
to protect himself against it, or fail to discover the danger).
Rather, Mr. Rivas acknowledges that he touched the drywall and
attempted to pull it away from the window so that he could get a
better look at the window frame. Consequently, here there was no
distraction. Mr. Rivas knew exactly what he was doing while he was
doing it, and nothing distracted him from, or interfered with, his
actions.
Finally, the plaintiffs argue that public-policy factors favor
a reversal of the trial court s order. The plaintiffs assert that
the magnitude of the burden on Westfield to warn them of the
dangers of the drywall was slight. Further, the consequences of
placing such a burden on the defendant were not great, as such a
precaution would not have required great expense or an unreasonable
effort.
Initially, we note that the plaintiffs do not offer any
suggestions as to what action Westfield should have taken to
protect them from the drywall. We find, however, that no such
warnings were necessary here. As we previously explained, the
drywall panels were large in size. Further, the panels were in a
large stack that was leaning against a wall. We find that a person
of reasonable intelligence would not need a warning to recognize
the danger that the stack could fall if tampered with.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed.
Affirmed.
DOYLE and Thomas, J.J., concur.