“A trial court grants or denies motions for summary judgment on the basis of what is contained in the motion for summary judgment and the responses thereto. . . . On appeal, our review is confined to the same facts and does not extend to the entire record before the trial court. . . . We will not consider ‘facts’ that are not set out as ‘facts in dispute.’”
How later courts described this case
- “A trial court grants or denies motions for summary judgment on the basis of what is contained in the motion for summary judgment and the responses thereto. . . . On appeal, our review is confined to the same facts and does not extend to the entire record before the trial court. . . . We will not consider ‘facts’ that are not set out as ‘facts in dispute.’”
- embankment with a twenty-to-thirty foot drop, impeded by two large metal pipes
- conclusory statements and legal conclusions, even if uncontroverted, are not "facts" for purposes of Rule 74.04, and cannot form the factual basis for summary judgment
Written by the judges who cited it.
The opinion
LISA VAN AMBURG, Judge.
I respectfully dissent. Summary judgment should not have been granted because there remain genuine issues of material fact for the jury to decide whether Plaintiff was reasonably distracted from discovering the forty-foot drop-off and whether Defendants should have anticipated the harm.
DISCUSSION
It is a fact of human nature, surely well understood by the Cardinals and Metro-link, that an individual in a “madding crowd” can be distracted from a hazard otherwise open and obvious. The following facts are properly in the summary judgment record. Plaintiff Holzhausen never saw the drop-off nor did she anticipate the hazard because she trusted such a drop-off would be fenced in. (LF 48, 78, 187-188). 1 She had never been in this area before and did not see the drop-off when she stepped onto the ledge that was Cardinals’ property. (LF 45-46, 48, 186— 187). As she climbed over the second pipe, others in the crowd seeking a view of the approaching parade were already straddling the pipe. (LF 49, 187). She never saw that she had approached an unprotected ledge because she was immediately distracted from the hazard when someone in the crowd shouted “Here *500 comes Tony LaRussa on the beer wagon.” (LF 48; 187). As she turned her head toward the beer wagon, someone accidentally bumped her, causing her to fall off the ledge. (LF 48,187).
This Court has found a genuine issue of fact remains if a jury could reasonably infer that a reasonable plaintiff may have been distracted from discovering a hazardous condition. Bruner, 857 S.W.2d 329 . In Bruner , this Court recognized a crowd can play a role in distracting someone from observing a potentially hazardous condition. Id. at 333 . There, the plaintiff, while on a moving walkway at the airport, fell and injured himself when he failed to see that the walkway was ending. Id. at 331 . Plaintiff had been in airports previously, had ridden on other moving walkways, and anticipated that he would be given some type of warning that the end of the walkway was near. Id. Our court reversed the trial court’s grant of summary judgment and remanded, finding questions of fact remained for the jury because plaintiff failed to discover the hazard in part due to typical airport diversions, such as “crowds, restaurants, shops, direction signs, and luggage.” Id. at 333 . Here, Plaintiff properly presented evidence in the summary judgment record that the drop-off and risk of harm were not reasonably apparent to her due to typical diversions created by large crowds and an approaching parade. Under Bruner , the jury should decide whether Plaintiff was reasonably distracted from the danger.
Furthermore, there is sufficient evidence in the summary judgment record for a jury to decide whether Defendants should have anticipated the harm. The Cardinals and Metrolink presumably have extensive experience with crowd behavior, both in and outside the stadium. In Boll v. Chicago Park Dist., 249 Ill.App.3d 952 , 189 Ill.Dec. 765 , 620 N.E.2d 1082, 1088 (1991), “plaintiff was forced to contend with the magnitude of the crowd and his frustration at being unable to depart from the stadium in a more expedient fashion.” “Defendant knew that the inability to exit had caused other invitees to climb over the railings.” Id. The court stated, “[defendant could have reinforced the railing or opened more exit routes. Yet, defendant did nothing.” Id. The court in Boll therefore held “that the trial court did not abuse its discretion in finding that defendant owed its invitees a duty of reasonable care with respect to an unreasonable danger posed by the conditions, even if they could be considered open and obvious.” Id. Likewise, Plaintiff here contends the large crowd and excitement over the approaching beer wagon distracted her from the hazard. Other people were straddling the same pipe she climbed over before she was accidentally bumped over the edge. These facts are sufficient to submit to the jury the issue of whether Defendants should have anticipated that distractions of the parade and crowd would possibly result in someone tumbling over the unprotected ledge.
It is up to the jury to decide whether Plaintiff was reasonably distracted from the danger, whether the distraction contributed to her fall, and whether Defendants should have anticipated the harm. These are uniquely factual issues for juries to decide, not judges. I would therefore reverse and remand for trial.
. All references to the Legal File (LF) contained herein refer directly to the Summary Judgment record, e.g., Defendant Cardinals’ motion for summary judgment Exhibit A, Hol-zhausen Deposition and Plaintiffs responsive pleading, citing portions of her deposition to demonstrate material issues of fact in dispute.