# Bialek v. Moraine Valley Community College School District 524

> Appellate Court of Illinois · October 31, 1994 · 267 Ill. App. 3d 857

URL: https://www.frixlaw.com/law-library/cases/9861047

## Case

- **Full name:** BRUCE BIALEK, Plaintiff-Appellee, v. MORAINE VALLEY COMMUNITY COLLEGE SCHOOL DISTRICT 524, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** October 31, 1994
- **Citations:** 267 Ill. App. 3d 857; 204 Ill. Dec. 924; 642 N.E.2d 825; 1994 Ill. App. LEXIS 1367
- **Precedential status:** Published
- **Opinion:** Concurring in part by Buckley
- **Judges:** O'Connor, Buckley
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9861047

## How later opinions describe it (automated extraction)

- holding that there was no duty where plaintiff was injured when he ran into a goalpost (being used as a boundary marker) while running to catch a pass during a football game; court concluded that “[i]n these circumstances, a plaintiff will not be heard to claim that a distract…

## Opinion text

JUSTICE BUCKLEY, concurring in part and dissenting in part:
I agree with the majority that the goalpost was an "open and obvious” danger, that the "distraction” doctrine enunciated in Ward applies in actions alleging willful and wanton conduct, and that Moraine was entitled to a directed verdict. I cannot agree, however, that defendant did not owe plaintiff a duty. In coming to its conclusion that the "distraction” doctrine does not apply, the majority relies heavily upon Oropeza, Lerma, and Richardson. I do not agree that these cases stand for the broad propositions that the majority draws from them. Additionally, I find the majority’s rationale for distinguishing Ward to be facially unconvincing.
In order for a landowner to have a duty to warn of or otherwise protect people from an "open and obvious” condition on his property, it must reasonably be expected that a person on the premises who is generally exercising reasonable care for his own safety may be distracted or forgetful of the condition after having momentarily encountered it. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132 , 554 N.E.2d 223 .) In Richardson, plaintiff was at a picnic on defendant’s property when, during a water balloon fight, he jumped over an outstretched cable and hurt his knee upon landing. Even assuming the majority is correct in drawing from this case the broad rule that the "distraction” doctrine does not apply "in situations where a plaintiff’s voluntary recreational activities cause him to blind himself to dangers that surround him” (267 Ill. App. 3d at 864), such a proposition does not apply under the facts presented here.
The Richardson plaintiff was running at full speed in the direction of an "open and obvious” outstretched cable while looking behind him. At the last instant, he observed the cable and decided to jump over it. The Richardson court determined that plaintiff was "inattentive” and not distracted or forgetful of a condition of which he had been aware because the evidence showed that plaintiff had not observed the cable prior to the moment of the accident. The court reasoned that "it would offend logic to contend that one could be forgetful of a condition of which he had no prior knowledge.” (Richardson, 251 Ill. App. 3d at 409.) The Richardson court held, therefore, that the "distraction” doctrine did not apply because plaintiff was not exercising reasonable care for his own safety, but had "blind[ed] himself to the probable consequences of his own actions.” 251 Ill. App. 3d at 408.
The Richardson court’s conclusion was in no way dependent upon the fact that plaintiff was engaged in "voluntary recreational activities.” In fact, the court stated that "defendants could reasonably anticipate that patrons of their facility might engage in vigorous physical activities of the type ordinarily associated with an outdoor picnic.” (251 Ill. App. 3d at 408.) Thus, even though plaintiff was engaged in "voluntary recreational activities,” if plaintiff had been exercising reasonable care for his own safety and had been aware of the cable, the court’s conclusion would have been different. Additionally, Richardson does not apply here because plaintiff in this case was aware of the condition. The record shows that plaintiff knew of the presence of the goalpost. Therefore, unlike in Richardson, it cannot be said that the plaintiff here blinded himself to the "open and obvious” condition.
Lerma and Oropeza also do not support the majority’s conclusion that the "distraction” doctrine does not apply. In Lerma, plaintiff’s decedent drowned in a river leased by the City of Rockford. The Lerma court found that a body of water is per se an "open and obvious” risk. The Lerma court held, therefore, that the "distraction” doctrine did not apply because "it is not reasonably foreseeable to an owner or occupier of land that a person entering a body of water for recreation would somehow be distracted from the fact that he is in the water.” Lerma, 247 Ill. App. 3d at 576.
The Oropeza court found the "distraction” doctrine not satisfied where plaintiff was injured while playing on a basketball court which contained "clearly visible trenches that were about one inch deep and four inches wide.” (Oropeza, 238 Ill. App. 3d at 400.) Oropeza is analogous to Lerma because, as in Lerma, the Oropeza plaintiff was "in the water.” Although the "trenches” were open and obvious, the basketball court itself was an "open and obvious” danger because of the trenches. As in Lerma, it was not reasonably foreseeable that the plaintiff would somehow be distracted from the fact that he was playing on the court.
In the instant case, however, plaintiff was not "in the water.” It was not the field upon which plaintiff was playing which was the "open and obvious” condition; it was the goalpost on the side of the field. The majority is incorrect in drawing from Lerma and Oropeza the general proposition that "a plaintiff will not be heard to claim that a distraction of his own making imposes a duty on the defendant.” (267 Ill. App. 3d at 863.) Such a broad rule is contrary to the Ward rationale and changes the focus of the proper inquiry. The question is whether the defendant should reasonably have anticipated a distraction despite the obviousness of the condition. If a distraction of plaintiff’s own making is reasonably foreseeable, then defendant owes him a duty. It cannot seriously be argued that defendant could not reasonably have anticipated that people would play football on its field or that, while doing so, might be distracted by their game and run into the goalpost. This is clearly evident from the fact that football goalposts are padded in anticipation of just such an occurrence.
The majority also distinguishes Ward by asserting that in Ward the defendant "essentially lured the shopper onto its premises,” whereas
"[c]onversely, in Oropeza, plaintiff voluntarily and carelessly encountered precisely the danger which resulted in injury. *** As the Oropeza court aptly stated by way of example, '[p]laintiff was not in a situation where he was required to encounter risks *** when he sustained the *** injuries.’ ” (267 Ill. App. 3d at 863.)
The inescapable conclusion to be drawn from this reasoning is that, unlike in Ward, where plaintiff was "lured” onto the premises, the majority views this situation as one where plaintiff was not required to encounter the condition and voluntarily and carelessly did so. According to the Ward court’s reasoning, however, the fact that plaintiff was invited to the store merely supported the conclusion that defendant had a duty to plaintiff because it was "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.” (Ward, 136 Ill. 2d at 154 .) The mere fact that the Ward plaintiff may have been "lured” onto the premises does not mean that he did not voluntarily and carelessly encounter the risk. In fact, it could be said that in almost every situation where a person is injured after being distracted or forgetful of an open and obvious condition, that person has voluntarily and carelessly encountered the condition. Such a determination, however, goes to plaintiff’s degree of fault and is a damage-reducing factor; it does not address the relevant question of whether defendant owed plaintiff a duty.
Moreover, the fact that plaintiff was not in a situation where he was required to encounter the risk does not mean that defendant owed no duty. Whether plaintiff was required to encounter the risk goes to reasonable foreseeability. As the full quote from Oropeza shows, the only situation where a person would truly be required to encounter risks is when "he [is] required to encounter risks to perform duties associated with employment.” (Emphasis added.) (Oropeza v. Board of Education (1992), 238 Ill. App. 3d 399, 401 , 606 N.E.2d 482, 484 .) It cannot be said that the Ward plaintiff was required to encounter the risk. Thus, the majority has failed to distinguish Ward at all.
In determining the applicability of the "distraction” doctrine, the proper inquiry is two-pronged. First, the court must determine if the condition is "open and obvious.” Second, if it is open and obvious, the question is whether it was reasonably foreseeable that a person who is exercising reasonable care for his own safety might be distracted or forgetful of the condition after momentarily encountering it. The majority, however, has added an intermediary inquiry which asks whether plaintiff created the distraction himself, was engaged in voluntary recreational activities or was required to encounter the risks. Such questions merely go to the reasonable foreseeability of the distraction. Even if a plaintiff is not required to encounter the condition and is distracted by his own. games during voluntary recreational activities, a defendant may still owe him a duty if such a distraction is reasonably foreseeable. The majority’s reasoning, however, makes the answer to these questions dispositive of the existence of a duty and ignores the question of reasonable foreseeability.
In this case, defendant owned and maintained an athletic field with a goalpost. Defendant knew people used the field for athletic purposes and it was foreseeable that people would enter the premises, even without permission, and play football. Contrary to the majority’s assertion, the fact that plaintiff was playing football is evidence that he was distracted. In my opinion, it cannot seriously be contested that it was reasonably foreseeable that persons playing football on defendant’s premises could be distracted by their game and run into the goalpost. Thus, I would find that defendant did owe plaintiff a duty to warn of or otherwise protect him from the open and obvious condition on its premises.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9861047. Public record. Not legal advice.