Sidewalk distraction ruling cut down by high court; 100-year-old tree too significant to die, stands

By The Madison County Record | Sep 23, 2014

SPRINGFIELD – All seven Illinois Supreme Court Justices immunized the city of Centralia from a trip and fall suit, reversing appellate judges who found it worthy of trial.

The justices on Sept. 18 held that Fifth District judges Judy Cates, Thomas Welch and Bruce Stewart improperly applied an exception to municipal immunity for cases of distraction.

Supreme Court Justice Mary Jane Theis wrote that plaintiff Virginia Bruns "failed to identify any circumstance requiring her to divert attention from an open and obvious sidewalk defect," Theis wrote for the court. “We note that the concept of foreseeability is not boundless.

“That something might conceivably occur does not make it foreseeable."

At age 79, Bruns fell on her way to her eye clinic in 2012 after her foot struck a portion of sidewalk that tree roots had lifted by three inches.

Clinic owners twice had offered to remove the 100-year-old tree, but the city’s historic preservation committee declared it too significant to die.

Bruns sued Centralia, arguing that the distraction exception applied.

Centralia sought immunity, and Marion County judge Michael McHaney granted it and found Bruns proposed a universal exception.

“Such an expansion of Illinois negligence law must only come from the legislature or a higher court,” McHaney wrote.

Cates, Welch and Stewart accepted his invitation to expand negligence law last September, finding he should have applied the distraction exception.

“It is certainly reasonable to foresee that an elderly patron of an eye clinic might have his or her attention focused on the pathway forward to the door and steps of the clinic as opposed to the path immediately underfoot," Cates wrote. “The focus is on the foreseeability of the injury, and it is of no consequence whether or not a jury will consider plaintiff contributorily negligent for looking toward the entrance to the clinic.

“The factual circumstances of plaintiff’s conduct are matters within the purview of the jury, not the court. ... The fact that this condition occurred over several years and that the city had knowledge of the danger does not allow the city to bury its head in the sand and ignore the real danger posed by the uneven sidewalk.

“Moreover, it is not necessary for a defendant to foresee the precise nature of the distraction.”

The Supreme Court chose not to expand negligence law.

Theis wrote that the distraction exception applies where a possessor of land has reason to expect that an 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.”

“Here, the only distraction identified by plaintiff is that her attention was fixed on the door and steps of the clinic,” Theis wrote. “Although the record supports that plaintiff was in fact looking in that direction, rather than at the defective sidewalk, we conclude that the mere fact of looking elsewhere does not constitute a distraction.

“To the extent that looking elsewhere could itself be deemed a distraction, then it is at most a self made distraction. ... “The plaintiff’s position is contrary to the very essence of the open and obvious rule: because the risks are obvious, the defendant could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition.

“The city has miles of sidewalk to maintain. The imposition of this burden is not justified given the open and obvious nature of the risk involved.”

Brian Funk of Northbrook represented Centralia. Daniel Price of Centralia represented Bruns.

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