JANET WARFIELD v. STATE OF ILLINOIS BOARD OF TRUSTEES ILLINOIS STATE UNIVERSITY (2012)

OPINION

This case coming to be heard before the Court, due notice having been given the parties, and the Court being fully advised in the premises:

Claimant filed a one-count Complaint on November 25, 2008, against Respondent. Respondent filed its Answer and Amended Affirmative Defenses on August 10, 2010, and filed its Motion for Summary Judgment on October 5, 2010, pursuant to 74 Ill. Adm. Code § 790.90 and 735 ILCS 5/2-1005. The Motion for Summary Judgment was fully briefed by the parties: Claimant filed its Response on October 25, 2010, and Respondent filed its Reply on December 1, 2010.

I. Summary Judgment Standard

Summary judgment is proper if the pleadings, depositions, admissions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c); Freeman v. State, 55 Ill. Ct. Cl. 329, 334 (2003). While a plaintiff need not prove her case at this stage, she must present sufficient evidentiary facts to support the elements of her claim or present some factual basis which would arguably entitle her to judgment. Id.; Kuwik v. Starmark Star Marketing & Admin. Inc., 232 Ill. App. 3d 8, 12 (2nd Dist. 1992); Barber-Coleman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1071 (5th Dist. 1992).

II. Facts

Claimant brings this personal injury claim against Respondent alleging negligence in the maintenance of physical property it owns and operates on the campus of Illinois State University in Normal, Illinois. On April 16, 2008, Claimant alleges she met her husband for dinner in the Bone Student Center. Claimant purchased food at one restaurant and sat down with her tray to eat at tables and chairs provided by a coffee shop then known as the “Cage 2.” To access the “Cage 2” sitting area, Claimant passed through a curved archway. After she finished eating, Claimant picked up her tray and walked through the curved archway again to access the trash containers. Claimant disposed of her trash, then turned, started to walk back to the seating area, and tripped and fell, allegedly sustaining injury to her shoulder.

Claimant asserts that her injury was a result of negligence and carelessness on the part of Respondent. Claimant states that Respondent placed the trash containers next to the concrete base of the curved archway that protruded into the walkway, effectively creating a tripping hazard. Claimant states Respondent failed to provide warning by sign or paint color to direct customers' attention when placing garbage into the trash containers in order to alert them to the possibility of tripping on the base of the curved archway. Claimant alleges that Respondent had notice that the base of the archway curved into the walkway, yet failed to relocate the trash containers. Claimant states that, as a result of the fall, she suffered an injured shoulder, endured pain and suffering, and was forced to incur medical expenses. Claimant now seeks damages up to $100,000.

III. Legal Analysis

The law is well established that in order to maintain an action for negligence, a Claimant must establish by a preponderance of evidence that (1) Respondent owed Claimant a duty, (2) the duty to Claimant was breached by a negligent act or omission to act and (3) the negligence proximately caused the compensable injury. Johnson v. State, 48 Ill. Ct. Cl. 345, 350 (1996), citing O'Neill v. State, 46 Ill. Ct. Cl. 146, 148 (1993). The State is not an insurer of the safety of invitees, but must only exercise reasonable care for their safety. Hickman v. State, 55 Ill. Ct. Cl. 388, 390 (2002), citing Fausch v. Board of Trustees of the University of Illinois, 42 Ill. Ct. Cl. (1989). This Court has adopted the doctrine that an invitee assumes all normal, obvious, and ordinary risks attendant to the use of the applicable premises. Hickman, 55 Ill. Ct. Cl. at 390, citing Sanders v. Board of Governors of State Colleges and Universities, 48 Ill. Ct. Cl. 177, 179 (1995).

Here, Respondent asserts that it did not breach its duty to Claimant because the curved archway was an open and obvious condition. Section 343A of the Restatement illustrates that “[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 at 218 (1965). Something is “obvious” if “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.” Restatement (Second) of Torts section 343A, Comment b, at 219 (1965). In other words, 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 excuse the duty of reasonable care toward invitees unless the facts indicate the landowner should have anticipated the harm despite such knowledge or obviousness. Hickman, 55 Ill. Ct. Cl. at 391, citing Ward v. K Mart Corp., 136 Ill. 2d 132, 149-51 (1990). In this case, Claimant acknowledges that she walked through the curved archway twice without incident prior to her fall. Further, Claimant acknowledged that she witnessed other individuals use the trash containers without falling.

Claimant argues that the openness and obviousness of the curved archway should not exempt Respondent because Respondent could reasonably expect that Claimant would be distracted. Claimant relies on the principle establishing that a possessor of land should anticipate harm to an invitee when the possessor “has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Restatement (Second) of Torts section 343A, Comment f, at 220 (1965). Here, Claimant contends that Respondent should have reasonably anticipated that Claimant would be distracted when carrying her tray to the trash containers. Claimant relies on the Ward case, in which the Illinois Supreme Court held that the defendant's duty of reasonable care encompassed the risk that one of its customers, while carrying a large, bulky item, would collide with a post upon exiting the store. 136 Ill. 2d at 157.

Ward, however, is distinguishable from this case. In Ward, the plaintiff was carrying a large bathroom mirror, which was five feet long and approximately one-and-a-half feet wide. Id. at 138. In that case, the Supreme Court held that “[t]he inquiry is whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted, as when carrying large bundles, or forgetful of the condition after having momentarily encountered it.” Id. at 152. In this case, Claimant was not carrying a large bundle, but rather a tray full of refuse. Moreover, Claimant had disposed of the refuse when she allegedly fell. Claimant states that, after passing through the curved archway a second time, she threw out her trash, and then fell. Thus, Claimant cannot reasonably argue she was distracted when she fell and cannot claim the distraction exception to the open and obvious exception.

Because the curved archway was an open and obvious condition, we find that the Respondent did not breach any duty owed to Claimant and thus Claimant has failed as a matter of law to establish an element of her claim.

For the reasons set forth herein, it is hereby ordered that Respondent's Motion for Summary Judgment is granted.

BURNS, J.