Ballog v. City of Chicago

ILLINOIS OFFICIAL REPORTS

Appellate Court

Ballog v. City of Chicago, 2012 IL App (1st) 112429

Appellate Court ELEANOR BALLOG, Plaintiff-Appellant, v. THE

Caption CITY OF CHICAGO, a Municipal Corporation,

Defendant-Appellee.

District & No. First District, Sixth Division

Docket No. 1-11-2429

Filed October 26, 2012

Held Summary judgment was properly entered for

(Note: This syllabus defendant city in an action for the broken foot

constitutes no part of

the opinion of the court plaintiff suffered when she fell on a city street, since

but has been prepared the gap in the street that caused her fall was an open

by the Reporter of

Decisions for the and obvious condition that required her to exercise

convenience of the reasonable care for her own safety, and the

reader.)

deliberate encounter exception did not apply.

Decision Under Appeal from the Circuit Court of Cook County, No.

Review 08-L-12290; the Hon. Mary Mulhern, Judge,

presiding.

Judgment Affirmed.

Counsel on Joseph V. Roddy and Jeane N. Brown, both of Law

Appeal Offices of Joseph V. Roddy, of Chicago, for

appellant.

Stephen R. Patton, Corporation Counsel, of Chicago

(Benna Ruth Solomon, Myriam Zreczny Kasper,

and Justin A. Houppert, Assistant Corporation

Counsel, of counsel), for appellee.

Panel JUSTICE GARCIA delivered the judgment of the

court, with opinion.

Presiding Justice Lampkin and Justice Hall

concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Eleanor Ballog appeals from the circuit court’s grant

of summary judgment to defendant City of Chicago (the City) in

her suit charging the City with negligence. The plaintiff fractured

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her foot when she tripped as she stepped from the portion of the

street that had been excavated, refilled with concrete, but not

resurfaced. We append two photographs of the location, identified

as “Plaintiff’s Exhibit #1” and “Plaintiff’s Exhibit #5.” The

plaintiff marked plaintiff’s Exhibit No. 5 to show where she

landed on the connecting sidewalk when she fell. The plaintiff

contends summary judgment was precluded because two material

questions of fact remain: (1) whether the condition that caused the

plaintiff to fall was an open and obvious condition; and (2)

whether the deliberate encounter exception to the open and

obvious doctrine applied. We hold the condition of the street was

open and obvious as a matter of law where the parties do not

dispute the physical nature of the condition and the exception did

not apply where no deliberate encounter occurred. We affirm.

¶2 BACKGROUND

¶3 On August 17, 2008, the plaintiff was injured in a fall at the

intersection of North Leavitt Street and West Belle Plaine Avenue

in Chicago. At her deposition on November 13, 2009, the plaintiff

testified that at 11:15 a.m., she left her residence to walk five

blocks to attend church services. She identified several

photographs that depicted the intersection where she fell. Asked

to describe how she fell, the plaintiff stated that she did not see

the gap in the street as she crossed Belle Plaine Avenue in the

crosswalk, as she walked southbound on Leavitt. She was

“admiring” the construction that had been completed at the

intersection, which had been ongoing for six months. During the

construction, she had observed warning signs on the streets. When

she walked to church while the streets were under construction,

she would “walk in the middle of the street” instead of using the

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crosswalk at the intersection. She could not recall if she had

walked to church the week before the incident and could not

recall the last time she was in the area prior to her fall. The

plaintiff always walked the same route to attend church. She

stated that she was familiar with the area and traveled in that

location “[e]very week, or every two weeks” for years.

¶4 On the date the plaintiff fell, it was a beautiful, dry August day.

The plaintiff testified, “There [were] no signs saying there was

construction still, nothing. As I was walking, I had canvas shoes

on, lightweight. It was summer.” She continued, “There was

nothing to say that anything was wrong with the streets. My foot

went on the edge of the–that was up, twisted, I fell to my knees,

and couldn’t remember the rest because I woke up and I was in a

lady’s arms.” When asked whether anything distracted her

immediately prior to her fall, the plaintiff answered, “The

niceness of the streets, the clean up.” Before she fell she “was

looking towards the church,” that was “[a]head of [her].” She

stated that she did not see the unfilled portion of the street until

she fell. When asked what caused her to fall, the plaintiff

responded, “the street wasn’t finished. The construction was not

done.” The plaintiff was asked, “[B]efore the accident, if you

were looking down, were you able to see [the gap in the street]?”

The plaintiff answered, “From crossing, no. You just thought to

yourself it’s done. Look how beautiful. That was it.” The plaintiff

fractured her right foot in the fall.

¶5 After the plaintiff fell, she observed the unfilled portion of the

street. The plaintiff made clear that the gap where she tripped was

not covered or obscured by leaves, debris, or anything else.

According to the plaintiff, she could not see the gap as she entered

the intersection because the elevated center of the street obscured

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her view of the other side. A photograph of the intersection

depicted in plaintiff’s Exhibit No. 1 reveals that in addition to the

gap that caused her fall, a similar gap in the surface of the street

existed at the corner from where the plaintiff began her walk

across Belle Plaine Avenue.

¶6 The plaintiff marked where she landed after she fell on

plaintiff’s Exhibit No. 5, a photograph of the intersection. The gap

abutted the beginning of the sidewalk and ran some unspecified,

but short distance into the street. Neither party provided the

dimensions of the gap from the end of the surface covering of the

street to the start of the sidewalk. Plaintiff’s Exhibit No. 5 depicts

a plainly visible elevation where the concrete of the sidewalk

abuts the street. The plaintiff did not measure the height of the

elevation from the gap to the concrete of the sidewalk that is

visible on plaintiff’s Exhibit No. 5.

¶7 Karin Meyers testified at her deposition on January 28, 2011,

that on August 17, 2008, she was walking with her boyfriend to

the grocery store and passed the plaintiff on the sidewalk as they

walked in the same direction on Leavitt. “[A]nd then once we

were halfway down the block after that intersection, we heard her

fall.” Meyers did not see the plaintiff fall, but as soon as she heard

her fall, she “knew exactly what had happened ’cause I almost

tripped at the same thing crossing that intersection.” According to

Meyers, at that same intersection, “I didn’t fall, but I had taken a

little, you know, stumble at this same exact spot.” When asked to

describe how she stumbled, Meyers responded, “I think it was the

edge of the road and then not getting my foot up for the edge of

the curb in time, and so the tripping on the edge of the curb there

in that ditch that’s between the street and the sidewalk.” Meyers

described the “ditch” as a “nonfilled-in area between the street

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and the sidewalk.” Meyers did not see the gap until after she

stumbled on it. She did not recall seeing any warning signs or

barriers at the intersection on the date of the incident. However,

the area was not covered or obscured by any debris.

¶8 After she heard the plaintiff fall, Meyers returned to the

intersection to assist the plaintiff. According to Meyers, the

plaintiff indicated she had fallen because of the “problem with

the–you know, not being filled in right between the street and the

curb.” The City’s attorney asked Meyers if she could recall the

height difference between the downward slope of the sidewalk at

the curb and the gap. Meyers responded, “I doubt it was more

than two inches, but maybe around two inches. The problem is

that it dips down and then–you’ve got this unexpected dip down

even if it’s not very deep and then an unexpected dip up or step up

that’s just a few feet–you know, just like a foot later, and so if

you’re walking in a normal distance between your feet, one of

those is going to get tripped up either going in or going out.” She

stated that it was difficult to see the gap when approaching from

the opposite side of the street. Meyers identified the gap in the

street in a photograph of the intersection: “I can see it looking at

the photograph.” However, she did not see the gap as she crossed

the street because she was “expecting it to be like a normal street

meeting the curb, so I was looking just up and about at, you

know, trees or my boyfriend or whatever.” Meyers did not know

how long the gap was there prior to the plaintiff’s fall. Meyers

stated, “I mean it hadn’t been there always. I have the sense that

maybe it had been there for just a short time, maybe a week or

something, I don’t know because I hadn’t been there–I don’t think

it had been there the previous time that I walked down there

which was probably, you know, a couple of weeks beforehand.”

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¶9 On April 26, 2011, the City moved for summary judgment,

arguing that the unfilled portion of the street was an open and

obvious condition that did not give rise to a duty of care owed by

the City to the plaintiff. The City contended the photographs and

the plaintiff’s testimony showed the gap was “clearly visible and

any pedestrian walking along that portion of the crosswalk can see

that part of the crosswalk was taken out.” The City asserted that

the open and obvious condition was not unreasonably dangerous;

nor was it reasonable to require the City to anticipate that a

pedestrian, in the exercise of ordinary care, would not have taken

the precautions necessary to safely traverse the area. In other

words, a reasonable person in the plaintiff’s position would have

seen the condition and appreciated the risk of walking over it.

¶ 10 In her response, the plaintiff argued that “a genuine issue of

fact exists as to whether the excavated gap in the street was an

open and obvious condition.” According to the plaintiff, the

deposition testimony established that neither she nor Meyers

could see the gap in the crosswalk when walking toward it from

the opposite side of the street. The plaintiff asserted the City

should have placed warning signs or barriers at the crosswalk to

notify pedestrians that construction was incomplete. The plaintiff

contended that, even assuming the gap was an open and obvious

condition, the deliberate encounter exception applied because the

City should reasonably expect that pedestrians would utilize the

crosswalk.

¶ 11 In its reply, the City raised its immunity under the Local

Governmental and Governmental Employees Tort Immunity Act

(the Act) (745 ILCS 10/3-104 (West 2010)) as to any contention

that it should have placed warnings or barricades at the

intersection. The City argued in its reply that section 3-104 of the

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Act immunizes the City “ ‘against all liability arising from its

failure to initially provide a traffic control device, even where

such failure might endanger safety’ ” (quoting Bonner v. City of

Chicago, 334 Ill. App. 3d 481, 487 (2002)). The City contested

the plaintiff’s claim that the deliberate encounter exception

applied when no evidence was adduced that the plaintiff suffered

from an economic compulsion to encounter the open and obvious

condition. The City reiterated that the plaintiff is expected to

exercise ordinary care for herself when confronted by the risk of

injury from an open and obvious condition.

¶ 12 The circuit court granted the City’s motion for summary

judgment on August 9, 2011.

¶ 13 The plaintiff timely appealed.

¶ 14 ANALYSIS

¶ 15 The plaintiff contends the circuit court erred in granting

summary judgment to the City because two material questions of

fact remain. First, whether the gap in the street constituted an

open and obvious condition was a question for the trier of fact.

Second, the trier of fact should also decide whether the deliberate

encounter exception to the open and obvious condition applied.

The plaintiff argues, “The obviousness of a condition of whether

in fact the condition itself served as 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.”

Even if the condition of the street was open and obvious as a

matter of law, the plaintiff urges that the deliberate encounter

exception applies in this case because it is reasonable to expect

that pedestrians will use the crosswalk. According to the plaintiff,

the photographs of record “clearly show that there simply was no

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other safe way for Plaintiff to cross the intersection other than by

using the crosswalk.”

¶ 16 The City responds that the obviousness of the condition of the

street means the City owed no duty to the plaintiff to protect her

against the risk of falling as she stepped from the unfilled portion

of the street. According to the City, the obviousness of the gap

provided the plaintiff with adequate notice that she should

exercise ordinary care to protect herself while traversing the gap.

The City also disputes that the facts of this case warrant the

application of the deliberate encounter exception to the open and

obvious doctrine.

¶ 17 Summary Judgment Review

¶ 18 Summary judgment is proper when the pleadings, depositions,

and affidavits demonstrate that as a matter of law, the moving

party is entitled to judgment. 735 ILCS 5/2-1005(c) (West 2010);

Ishoo v. General Growth Properties, Inc., 2012 IL App (1st)

110919. The purpose of summary judgment is not to answer a

question of fact, but to determine whether one exists. Garcia v.

Wooton Construction, Ltd., 387 Ill. App. 3d 497, 504 (2008). “In

determining whether a genuine issue of material fact exists, a

court must construe the materials of record strictly against the

movant and liberally in favor of the nonmoving party.” Harlin v.

Sears Roebuck & Co., 369 Ill. App. 3d 27, 31 (2006). Summary

judgment should not be granted unless the movant’s right to

judgment is free and clear from doubt. Mitchell v. Special

Education Joint Agreement School District No. 208, 386 Ill. App.

3d 106, 111 (2008). We review the grant of summary judgment

de novo. American Family Mutual Insurance Co. v. Fisher

Development, Inc., 391 Ill. App. 3d 521, 525 (2009).

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¶ 19 Open and Obvious Condition

¶ 20 The open and obvious doctrine addresses the essential element

of duty in a negligence cause of action. Choate v. Indiana Harbor

Belt R.R. Co., 2012 IL 112948, ¶ 34; Harlin, 369 Ill. App. 3d at

31 (“The open and obvious doctrine speaks to the duty element[,]

which *** is a central element of any negligence claim.”). Absent

a legal duty of care owed to the plaintiff, the defendant cannot be

found negligent. Washington v. City of Chicago, 188 Ill. 2d 235,

239 (1999). “That is so because [u]nless a duty is owed, there is

no negligence [citation], and plaintiffs cannot recover as a matter

of law.” (Internal quotation marks omitted.) Id.

¶ 21 Consequently, “[i]n any negligence action, the court must first

determine as a matter of law whether the defendant owed a duty

to the plaintiff.” Choate, 2012 IL 112948, ¶ 34; Ward v. K mart

Corp., 136 Ill. 2d 132, 140 (1990). A duty of care arises when the

law imposes “upon defendant an obligation of reasonable conduct

for the benefit of plaintiff.” Ward, 136 Ill. 2d at 140. With respect

to conditions on land, generally there is no duty of care owed by

the landowner regarding open and obvious conditions because the

landowner “could not reasonably be expected to anticipate that

people will fail to protect themselves from any danger posed by

the condition.” Id. at 148.

¶ 22 “The term ‘[o]bvious’ denotes 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.” (Internal quotation marks

omitted.) Prostran v. City of Chicago, 349 Ill. App. 3d 81, 85-86

(2004) (quoting Deibert v. Bauer Brothers Construction Co., 141

Ill. 2d 430, 435 (1990), quoting Restatement (Second) of Torts

§ 343A cmt. b, at 219 (1965)). “Whether a condition is open and

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obvious depends on the objective knowledge of a reasonable

person, not the plaintiff’s subjective knowledge.” Prostran, 349

Ill. App. 3d at 86 (citing Bonner, 334 Ill. App. 3d at 484).

¶ 23 “[T]he requirement of an open and obvious danger is not

merely a matter of the plaintiff’s contributory negligence, or the

parties’ comparative fault, but rather a lack of the defendant’s

duty owed to the [plaintiff].” Choate, 2012 IL 112948, ¶ 34.

“Where there is no dispute about the physical nature of the

condition, whether a danger is open and obvious is a question of

law.” Id.

¶ 24 The City can reasonably expect pedestrians will exercise

reasonable care for their own safety upon confronting an open and

obvious condition, making it unnecessary for the City to take

additional precautions for the benefit of pedestrians. Ward, 136

Ill. 2d at 156. The condition itself serves as notice of the danger

and risk to trigger a pedestrian’s “duty to exercise ordinary care

for her own safety.” Prostran, 349 Ill. App. 3d at 87; Ward, 136

Ill. 2d at 156; Bucheleres v. Chicago Park District, 171 Ill. 2d

435, 447 (1996); Bonner, 334 Ill. App. 3d at 484.

¶ 25 The gap in the surface of the street is amply depicted in the

photographs in the record, which make clear the nature of the

condition. According to the plaintiff, that the nature of the

condition is clear does not mean the condition was open and

obvious as a matter of law. She asserts that while a reasonable

person could conclude the gap in the street that she encountered

was open and obvious, the issue should be resolved by a jury. The

plaintiff relies on five cases for her position: Buchaklian v. Lake

County Family Young Men’s Christian Ass’n, 314 Ill. App. 3d

195 (2000); Simmons v. American Drug Stores, Inc., 329 Ill. App.

3d 38 (2002); Nickon v. City of Princeton, 376 Ill. App. 3d 1095

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(2007); Duffy v. Togher, 382 Ill. App. 3d 1 (2008); and Alqadhi

v. Standard Parking, Inc., 405 Ill. App. 3d 14 (2010).

¶ 26 Alqadhi and Duffy are immediately distinguishable because in

each case the plaintiff presented testimony of an expert to support

the contention that the open and obvious condition raised a factual

question, which this court expressly noted. Alqadhi, 405 Ill. App.

3d at 15, 17-18 (“the testimony of plaintiff’s expert *** created

a question of fact for the trier of fact”); Duffy, 382 Ill. App. 3d at

9 (plaintiff’s expert testified the design of the pool was “very

unusual,” “unsafe for the ordinary pool user,” and gave an

“optical illusion of a deep end” (internal quotation marks

omitted)). No such expert testimony was presented in this case.

¶ 27 Likewise, the facts in Buchaklian are too dissimilar to provide

any support for the plaintiff’s contention in this case. In

Buchaklian, the “plaintiff tripped and fell in the area of [the] mat”

in the women’s locker room at the local YMCA. Buchaklian, 314

Ill. App. 3d at 198. The circuit court determined that the YMCA

owed no duty to the plaintiff “based on the ‘open and obvious

condition’ doctrine.” Id. at 197. The plaintiff’s fall was caused by

“one particular piece of the mat *** standing up approximately an

inch or two [higher] than the other portions of the mat.” Id. at 198.

The Second District reversed, disagreeing “with the trial court’s

conclusion that, as a matter of law, the defect in the mat was an

open and obvious danger that plaintiff could have avoided had she

looked down at the floor in the area where she was going instead

of looking straight ahead.” Id. at 202. While we have no dispute

with the result reached in Buchaklian, the “defect in the mat,” as

described by the court, is too dissimilar to the condition here to

provide any guidance.

¶ 28 In Nickon, the Third District rejected the numerous challenges

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by the defendant municipality to the jury’s verdict in favor of the

plaintiff for injuries he sustained “after falling on a sidewalk

located on Main Street in Princeton.” Nickon, 376 Ill. App. 3d at

1097. Ultimately, the Third District rejected the municipality’s

final contention that it was entitled to a judgment notwithstanding

the verdict “because the depression in the sidewalk was ‘open and

obvious.’ ” Id. at 1106. The Nickon court concluded that the

condition of the sidewalk was for the jury to assess, which it did

in finding the municipality liable. The Nickon court explained its

ruling in light of the evidence before the jury. “The photographs

entered into evidence show a small depression similar in color to

the sidewalk, but partially covered by weeds. The photographs

depict the depression was not visible until the photographer’s

camera was almost directly above the depression.” Id. The court

agreed with the plaintiff that “the issue of whether ‘people on the

property would not discover or realize the danger’ of the

depression was one of fact.” Id. It is clear that the parties in

Nickon disputed the physical nature of the condition, which

rendered the open and obvious question one for the jury to

resolve. No such contention is present in this case.

¶ 29 The remaining case cited by the plaintiff for her contention that

“whether the condition itself serviced as notice of its presence ***

[is] properly left to the trier of fact,” is Simmons. This court in

Simmons issued an unequivocal statement on the issue. “Whether

a condition presents an open and obvious danger is a question of

fact.” Simmons, 329 Ill. App. 3d at 43. However, Simmons can no

longer stand as good authority on that proposition. As the Illinois

Supreme Court recently reaffirmed, only where there is a “dispute

about the physical nature of the condition” is the issue of an open

and obvious condition a question for the trier of fact to resolve.

Choate, 2012 IL 112948, ¶¶ 33-35 (overruling appellate court

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cases that held the question of whether children could appreciate

“hopping a moving train was dangerous” was factual; the court

ruled that as a matter of law proximity to a moving train was an

open and obvious dangerous condition reasonably known to

children); see also Belluomini v. Stratford Green Condominium

Ass’n, 346 Ill. App. 3d 687, 692-93 (2004) (“where there is no

dispute about the physical nature of the condition, the question of

whether the condition is open and obvious is legal”); cf. Alqadhi,

405 Ill. App. 3d at 17-18 (“But, ‘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.’ ” (quoting

Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1053

(2010))).

¶ 30 The instant plaintiff, however, does not advocate that the

“physical nature” of the gap in the street surface was disputed by

the parties below. As a consequence, the cases the plaintiff cites

provide no support for her position that the question of whether

the gap in the street constituted an open and obvious condition

was factual. Choate, 2012 IL 112948, ¶ 34; Belluomini, 346 Ill.

App. 3d at 692-93; Wilfong, 401 Ill. App. 3d at 1053. Nor would

we find such a dispute over the physical nature of the gap to be

objectively reasonable given the clear condition of the street on

both sides of Belle Plaine Avenue as depicted in the photographs

in the record. As the photographs aided the court in Nickon, the

photographs spread of record here confirm the physical nature of

the condition was not subject to dispute.

¶ 31 The photographs in the record make clear that gaps in the

surface of the street were present on both corners of the crosswalk

on Belle Plaine Avenue at its intersection with Leavitt Street. The

gap in the street on either corner of the crosswalk was patently

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visible. At the very least, the existence of the very same condition

of the street on the corner where the plaintiff began her walk

placed her on notice that the same condition might well be present

on the opposite side of the street. The plaintiff’s deposition

testimony conclusively established that she was able to safely

traverse the very same condition that she encountered on the other

side of the crosswalk on Belle Plaine Avenue, where she suffered

her fall. The plaintiff does not explain why the gap in the street

that caused her fall should be seen any differently from the same

gap that she safely traversed on the opposite corner. The same

condition on the corner where she entered the crosswalk rendered

her assertion as unremarkable that the opposite side of the street

could not be seen over the elevated center of the street as she

began her walk across Belle Plaine. While the City does not

dispute that the plaintiff could not see the opposite corner as she

began to cross Belle Plaine, a reasonable person would take note

that a similar open and obvious condition at the start of the

crosswalk might well be present on the opposite side. This is

particularly so where the plaintiff was familiar with the

construction undertaken at the intersection of Belle Plaine and

Leavitt, as she testified at her deposition, which caused her to

“walk in the middle of the street” while the construction signs

were posted. However, the physical nature of the condition where

she fell did not differ from the condition that she was able to

safely traverse on the opposite side of the street. The plaintiff was

under the same duty imposed on all pedestrians of ordinary

perception, intelligence, and judgment to exercise reasonable care

for her own safety in traversing the same open and obvious

condition at the end of the crosswalk that she encountered at the

start. Prostran, 349 Ill. App. 3d at 87.

¶ 32 Prostran, which involved a negligence claim by a pedestrian

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for an injury she sustained on the City’s sidewalk, is instructive

here. In Prostran, the plaintiff argued “that, due to her visual

handicap, the defect in the sidewalk was not open and obvious

and that, due to the general condition of the sidewalk, she did not

see the specific rock upon which she tripped until after she fell.”

Id. at 85. This court concluded that the visual disability did not

relieve her “of the duty to exercise ordinary care for her own

safety.” Id. at 87. “Given plaintiff’s testimony, we find that both

the condition of the sidewalk and the risk of walking on it were

apparent to and would have been recognized by a reasonable

person or by a reasonable person under like disability exercising

ordinary perception, intelligence, and judgment. Plaintiff’s visual

impairment notwithstanding, the condition of the sidewalk was

open and obvious.” Id. at 87. We affirmed the grant of summary

judgment.

¶ 33 We are further guided by this court’s decision in Sandoval v.

City of Chicago, 357 Ill. App. 3d 1023, 1029 (2005). In Sandoval,

the condition at issue was a “large five-by-six-foot section of the

sidewalk [that] was missing most of its concrete surface, and the

dirt underneath was exposed.” Id. “While the dirt comprised a

level surface, a big chunk of concrete remained, sticking upright

some three to four inches from the dirt.” Id. The plaintiff fell in

the “crater-like” defect in the sidewalk and fractured her ankle.

The Sandoval court held that “any reasonable person exercising

ordinary care in visiting this area would recognize and appreciate

the risk involved in traversing this portion of the sidewalk and,

specifically, the changes in elevation.” Id. We reached this

conclusion based on the evidence in the record, which included

photographs of the sidewalk. “From our review of the record,

which contains descriptions and photographs of the area in

question, it is clear that the defect was a condition of open and

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obvious danger.” Id. We affirmed summary judgment for the City.

¶ 34 In the instant case, had the plaintiff exercised ordinary care for

her own safety, as she apparently did in traversing the very same

gap in the street surface as she began to cross Belle Plaine

Avenue, she would have been able to safely traverse the gap on

the opposite side of the crosswalk. The existence of the gap on

both corners forecloses any suggestion that the gap was

unreasonably dangerous to demand additional precautions by the

City. “[I]f people who are likely to encounter a condition may be

expected to take perfectly good care of themselves without further

precautions, then the condition is not unreasonably dangerous

***.” (Internal quotation marks omitted.) Ward, 136 Ill. 2d at 148.

The City had no duty to “remove all dangers” from the crosswalk

in order to avoid liability. Id. at 142. It would be impossible for

the City to render the streets “injury-proof.” Id. at 156.

¶ 35 On de novo review, we agree with the circuit court that the

condition of the street was open and obvious as a matter of law.

¶ 36 Deliberate Encounter Exception

¶ 37 The plaintiff argues that if we conclude that the condition of the

street to be open and obvious as a matter of law, then whether the

deliberate encounter exception applies raises a question of fact for

a jury to resolve. In support, she asserts the crosswalk was the

prescribed means of crossing the intersection and the

photographic evidence establishes “there simply was no other safe

way for Plaintiff to cross the intersection other than by using the

crosswalk.”

¶ 38 The deliberate encounter exception “arises when the landowner

‘has reason to expect that the invitee will proceed to encounter the

known or obvious danger because to a reasonable man in his

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position the advantages of doing so would outweigh the apparent

risk.’ ” Wilfong, 401 Ill. App. 3d at 1054 (quoting Restatement

(Second) of Torts § 343A(1) cmt. f, at 220 (1965)). The deliberate

encounter exception applies when, as the name suggests, the

encounter is deliberate. LaFever v. Kemlite Co., 185 Ill. 2d 380,

394-96 (1998) (where the court formally adopted the exception,

while noting that a “deliberate choice” is involved); see Garcia v.

Young, 408 Ill. App. 3d 614, 617 (2011) (deliberate encounter

exception inapplicable where the “pothole” that constituted the

open and obvious condition was never noticed by the plaintiff

until after he was injured). If the deliberate encounter exception

applies, then a duty of care exists. LaFever, 185 Ill. 2d at 398.

¶ 39 To determine whether an exception to the open and obvious

rule applies, a court should “engage in the factor analysis that the

supreme court has used to determine duty.” Belluomini, 346 Ill.

App. 3d at 694; see LaFever, 185 Ill. 2d at 392-98 (the court

found the deliberate encounter exception applied where the

plaintiff had to encounter the open and obvious condition “to

fulfill his employment obligations,” and even though the

likelihood of injury did not weigh heavily in favor of finding a

duty, the burden on landowner to protect against harm was slight,

and consequences of placing that burden on landowner were

unremarkable).

¶ 40 In the instant case, we find no reason to examine whether the

four factors favor a finding that the City owed a legal duty to the

plaintiff under the deliberate encounter exception to the open and

obvious rule. The evidence establishes that the plaintiff did not

deliberately encounter the open and obvious condition. LaFever,

185 Ill. 2d at 396; Garcia, 408 Ill. App. 3d at 617; see also

Belluomini, 346 Ill. App. 3d at 695 (distraction exception did not

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apply “because there is no evidence that plaintiff was actually

distracted”).

¶ 41 Had the plaintiff taken notice of the gap in the street’s surface

to deliberately encounter the condition, she would have readily

appreciated the slight risk of crossing the gap and, in the course

of exercising due care for herself, been able to traverse it without

incident, much as she did on the opposite side of the street. There

is also no contention that the plaintiff was compelled to encounter

the open and obvious condition as she had avoided the

intersection during the period of actual construction. See

Prostran, 349 Ill. App. 3d at 90 (“While this testimony reveals

plaintiff’s preference for walking on the east side of North

Oakley, it does not demonstrate that she was compelled to do

so.”); Park v. Northeast Illinois Regional Commuter R.R. Corp.,

2011 IL App (1st) 101283, ¶ 26 (deliberate encounter exception

did not apply where there was no showing that a reasonable

person “would have disregarded the obvious risk of crossing

railroad tracks while a train is approaching”); Kleiber v. Freeport

Farm & Fleet, Inc., 406 Ill. App. 3d 249, 259 (2010) (deliberate

encounter exception did not apply where “plaintiff had another

option available”).

¶ 42 On de novo review, we agree with the circuit court that the

deliberate encounter exception to the open and obvious rule did

not apply under the facts of this case.

¶ 43 CONCLUSION

¶ 44 The circuit court did not err in granting summary judgment

where the condition at issue was open and obvious as a matter of

law and the deliberate encounter exception to the doctrine did not

apply.

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¶ 45 Affirmed.

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