BERNADETTE HICKMAN v. THE STATE OF ILLINOIS (2002)

ORDER

This case involves a claim for personal injuries sustained by claimant, Bernadette Hickman. In the early afternoon of June 18, 1998, claimant went to the Illinois Secretary of State's facility located at 99th Street and Martin Luther King Drive, in Chicago, Illinois, in order to obtain a license to become a bus driver. She was required to wait in a line that was delineated by blue ropes hung between metal posts. Patrons could only go in one way and were required to follow the path made by the ropes. The path wound west, came back east, and then wound west again.

Claimant had proceeded west through the first aisle and had turned back going east in the second aisle when she decided to get out of the line because she thought that she was in the wrong place. She stepped over the rope to get out of the line because she thought it was safe and had seen several other people do so. At the time, Claimant was holding her 10-month-old daughter. The tip of her foot hit the rope and claimant fell to the floor. She twisted her body to keep from falling on her daughter and fell on her side, sustaining injury to her leg. Claimant filed a negligence action against the State of Illinois, alleging that the State negligently permitted the aisles to become and remain in a dangerous and unsafe condition, in that the guide ropes on both sides of the aisle ways were allowed to hang too low, thereby causing her injury when she stepped and tripped over one of the ropes.

To prevail in a negligence claim as an invitee, the claimant must prove, by a preponderance of the evidence, that the premises were in a defective condition, that the defective condition was created by the State as owner of the premises or that a defective condition was in existence for such a period of time as to allow the State to know of its existence and to correct it, and that the defective condition was a proximate cause of claimant's injuries. The State is not an insurer of the safety of invitees, but must only exercise reasonable care for their safety. Fausch v. Board of Trustees of the University of Illinois (1989), 42 Ct. Cl. 175. This Court has adopted the doctrine that an invitee assumes all normal, obvious or ordinary risks attendant to the use of the premises. Sanders v. Board of Governors of State Colleges and Universities (1995), 48 Ill. Ct. Cl. 177, 179.

The State contends that the ropes were not an unreasonably dangerous condition. It claims that the ropes were not dangerous in and of themselves. The ropes were not intended to be stepped over; they were intended as barriers to prevent individuals from entering or leaving the lines and were clearly visible at any height. Further, the State claims that any risks presented by stepping over the ropes were open and obvious and that where a condition is open and obvious, the State owes no duty to protect claimant from any dangers associated with that condition.

Claimant maintains that even if the condition was open and obvious, a landowner is not relieved of the duty of reasonable care which he owes to the invitee if the landowner had reason to expect that the invitee's attention may become distracted, so that she would not discovery what is obvious or will forget what she has discovered, or fail to protect herself against it. See e.g., Ward v. K Mart Corp., (1990), 136 Ill. 2d 132. Claimant contends that the fact that the danger is known, or obvious, should be considered in determining whether the invitee is to be charged with contributory negligence.

Unless a duty exists, there is no negligence. Whether a duty exists is a question of law. Whether a duty exists is an inquiry shaped by public policy and involves consideration of: (1) the foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden on defendant in guarding against injury; and (4) the consequences of placing that burden on defendant. Ward, 136 Ill. 2d at 140-41; Ondes v. State (1991, 43 Ct. Cl. 272, 276.

In Ward, the Illinois Supreme Court held that the existence of an open and obvious condition is not an automatic or per se bar to the finding of a legal duty on the part of the owner or occupier of the premises. Ward, 136 Ill. 2d at 145; see also Bucheleres v. Chicago Park District, 171 Ill. 2d 435, (1996). Where a claimant alleges that she was injured by a condition on respondent's property while on the property as an invitee, the foreseeability prong of the duty test is decided by reference to section 343 of the Restatement (Second) of Torts, which states in relevant part:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition of 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 section 343 (1965).

In Ward, the Illinois Supreme Court also adopted section 343A of the Restatement which states an open and obvious exception to the duty of care set forth in section 343. LaFever v. Kemlite Co., a Division of Dyrothech Industries, Inc., 185 Ill. 2d 380, 390. Section 343A provides in relevant part:

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 section 343A (1965).

Thus, under the open and obvious exception, a landowner is not required to give precautions or warnings where such dangers or risks are evident in order to exercise the duty of reasonable care to ward invitees unless the facts indicate the landowner should have anticipated the harm despite such knowledge or obviousness. Ward, 136 Ill.2d at 149-51; Dunbar v. State (1992), 45 Ct. Cl. 175, 187.

Whether a possessor should guard against harm to the invitee, despite the obviousness of the hazard, depends upon two considerations: (1) if the possessor has reason to expect that the invitee's attention may be distracted so that she (a) will not discovery what is obvious or will forget what he has discovered or (b) fails to protect herself against it; and (2) if the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because the perceived advantages outweigh the perceived risks. This exception has been referred to as the deliberate encounter exception. LaFever, 185 Ill.2d at 391; see also Ward; 136 Ill.2d at 149-50; Restatement (Second) of Torts/343A, Comment f, at 220 (1965).

Neither of these exceptions are applicable in the present case. Distraction exception cases generally involve situations in which the injured party is distracted from the open and obvious condition because circumstances required that she focus her attention on some other condition or hazard. True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676, 680 (4th Dist. 2000). Here, claimant offered no evidence that she was distracted by anything at all when she tripped over the rope. On the contrary, claimant testified that she was standing in line and, even though this was not the normal exit, she consciously decided to step over the rope to get out of the line.

The second section 343A exception similarly does not apply under the facts of this case. No evidence was presented, nor does claimant contend, that she made a deliberate choice to proceed in the face of some danger presented by the rope. Claimant testified that the rope was approximately one foot above the ground at its lowest point and she decided to step over it. She had seen several other people go over the rope before her and decided to go over the rope because it looked safe.

Finally, Pamela Smith, a supervisor at the Secretary of State's facility in question, testified that during the seven years that she had worked at the facility, she had heard of accidents involving people jumping over the ropes two or three times, but that no one had ever filed a complaint to her knowledge. Under these circumstances, we find that the condition was open and obvious and that the State had no reason to have anticipated harm despite such obviousness.

We now turn to the remaining factors in the duty analysis: (1) the likelihood of injury; (2) the magnitude of the burden of placing the duty upon respondent; and (3) the consequences of placing the burden upon respondent. The likelihood of an injury is generally considered slight when a condition is open and obvious because it is assumed that persons encountering such a condition will appreciate and avoid the risk it presents. True, 316 Ill. App. 3d at 681. Because the rope was an open and obvious condition, the likelihood of injury was slight.

The remaining factors similarly do not warrant the imposition of a duty upon the State Patrons were not required to step over the ropes in order to exit the lines and, in fact, Ms. Smith, a supervisor at the Secretary of State's facility in question, testified that the purpose of the ropes is to keep the people in line. By their nature, the ropes were adjustable and could be easily moved. It would place an unreasonable burden on the State to constantly monitor and adjust the ropes to that they would remain at a safe height. Accordingly, a consideration of all of the relevant factors does not warrant the imposition of a duty upon the State.

In Shields v. State (1994), 47 Ct. Cl. 313, the claimant filed suit against the University of Illinois for injuries sustained when he slipped on some soda spilled on the steps of the Assembly Hall. At the time he slipped on the soda, claimant was not looking down at the floor but was watching the game. He also was not using the handrails located on either side of the steps. This Court found that the spill was an open and obvious condition and that a landowner was not required to give warning or precautions for dangers that are self-evident. Citing Ward, claimant argued that the university had a duty to anticipate that invitees would fail to appreciate the presence of substances on stairways when they were distracted or preoccupied with events taking place elsewhere. This Court noted that Ward states that the landowner or possessor of land is not required to anticipate the negligence of others. Since the danger was open and obvious and should have been recognized by claimant, this Court found that the State had not breached its duty of reasonable care in maintaining the facilities. Shields, 47 Ct. Cl. at 318.

Similarly, in the present case, we conclude that the State did not breach any duty owed to claimant.

IT IS HEREBY ORDERED that this claim is denied.

MITCHELL, J.