COURT WEIGHS DISABLED PLAINTIFF'S DUTY TO TAKE ADDITIONAL PRECAUTIONS

July 29, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Is an open and obvious hazard open or obvious for someone who is blind?

Affirming summary judgment in favor of the City of Chicago in the case of a visually impaired woman who fell in a "dug-up section of sidewalk," the Illinois Appellate Court -- applying a comment to section 283C of the Restatement (Second) of Torts -- concluded that "a disabled person may be required, under particular circumstances, to take more precautions than a person who is not disabled."

Prostran v. City of Chicago, 2004 WL 1322959 (1st Dist., June 11).
Here are some highlights of Justice Margaret O'Mara Frossard's opinion (with various omissions not noted in the quoted text):

"In this personal-injury case, plaintiff Mildred Prostran sued the City of Chicago, alleging that she fell on a dug-up section of sidewalk and broke two bones in her left wrist. The city moved for summary judgment, arguing that it owed plaintiff no duty as the defect in the sidewalk was open and obvious and that it was immune from liability for failure to provide warning devices.

"The trial court granted the city's motion. On appeal, plaintiff contends that due to her visual handicap, the defect of the sidewalk was not open and obvious, and that the city should have anticipated that visually disabled people might not notice the condition, appreciate the risk and avoid the area.

"To state a cause of action for negligence, a plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, that the defendant breached the duty, and that an injury was proximately caused by the breach.

"On appeal, plaintiff contends that the trial court erred in finding that she failed to establish the existence of a duty. She argues that due to her visual handicap, the defect in the sidewalk was not open and obvious, and that due to the general condition of the sidewalk, she did not see the specific rock upon which she tripped until after she fell.

"She further argues that the city should have anticipated that visually disabled people might not notice the condition, appreciate the risk and avoid the area. Whether a duty exists is a question of law.

"Ordinarily, parties who own, occupy, control or maintain land are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.

"The term 'obvious' denotes that 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.' Whether a condition is open and obvious depends on the objective knowledge of a reasonable person, not the plaintiff's subjective knowledge.

"Courts in other jurisdictions have applied this objective standard even where the plaintiff is visually impaired.

"Relying on Borus v. Yellow Cab Co., 52 Ill.App.3d 194 (1977), plaintiff asserts that the city is required to prove that the condition was open and obvious 'not to just anyone, but to a reasonable person with similar handicaps or limitations as the plaintiff.'

"Plaintiff has misinterpreted Borus. A careful reading of the opinion reveals that it addressed the issue of contributory negligence, not duty or the 'open and obvious' doctrine. Specifically, Borus held that if a plaintiff is ill or otherwise physically disabled, the standard of conduct to which that plaintiff must conform to avoid being contributorily negligent is that of a reasonable person under like disability.

"Borus did not address the 'open and obvious' rule as it relates to a defendant's duty. Accordingly, it is not particularly instructive in the context of the issues raised by the instant case.

"We note that section 283C of the Restatement (Second) of Torts, cited in Borus and titled 'Physical Disability,' provides as follows: 'If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability.'

"Plaintiff, relying on Borus and section 283C of the Restatement (Second) of Torts, argues that the standard of conduct to which she 'must conform to avoid being negligent is that of a reasonable person under like disability.' Even applying that standard in the instant case, the record fails to support plaintiff's argument that summary judgment was improper.

"Comment c to section 283C explains that a disabled person may be required, under particular circumstances, to take more precautions than a person who is not disabled.

"An accompanying illustration provides as follows: 'A, a blind man, is walking down a sidewalk in which he knows that there is a dangerous depression. Without asking for assistance from anyone, A attempts to walk through the depression. A may be found to be negligent, although a normal person would not be negligent in doing so.'

"The Court of Claims of Illinois has similarly noted, in the only Illinois case other than Borus to cite section 283C, that a disability does not relieve a plaintiff of the duty to exercise ordinary care for her own safety. See Sewell v. Board of Trustees of Southern Illinois University, 32 Ill.Ct.Cl. 430 (1979).

"In Sewell, the Court of Claims held, 'A disabled or handicapped person, whether blind, deaf, aged or lame, will be held to exercise that degree of care which an ordinary prudent person with the same condition would have exercised under similar circumstances.'
"At her deposition, plaintiff testified that when she was about four or five sidewalk squares away from the alley, she noticed it was under construction. As she approached the area, she saw that it was 'dug rather deep.' When plaintiff 'got close to it,' she observed that 'there was a lot of rocks in there, and a lot of mud, a mixture of rocks and mud.'

"Plaintiff was able to perceive all of this despite the fact that she is blind in one eye and has a cataract and an astigmatism in the other.
"Given plaintiff's testimony, we find that both the condition of the sidewalk and the risk of walking on it were apparent to and would have been recognized by a reasonable person or by a reasonable person under like disability exercising ordinary perception, intelligence, and judgment.

"Plaintiff's visual impairment notwithstanding, the condition of the sidewalk was open and obvious.

"Plaintiff's testimony demonstrates that she was aware at the time of her fall that the sidewalk she chose to use was in a dangerous condition and that her view was not obstructed even though she was visually impaired. Plaintiff observed the condition of the sidewalk as she approached it and was aware of it before she fell, yet she chose to walk through the construction.

"Moreover, she could have avoided the construction entirely simply by crossing to the sidewalk on the other side of the street. She admitted at the hearing on the motion for summary judgment that she could have walked on the sidewalk on the other side of the street.

"We do not disagree with plaintiff's argument that the city should be considered to know that handicapped persons, including pedestrians with visual impairments, could encounter a construction zone. However, the open and obvious nature of the condition of the sidewalk in the instant case, together with plaintiff's own knowledge of that condition based on her testimony, undermines plaintiff's argument that the city owed her a duty.

"Finding the existence of an open and obvious condition does not end our inquiry. There are two exceptions to the open and obvious rule: the distraction exception and the deliberate encounter exception."

Neither exception applied, Frossard concluded. However, "Finding that the open and obvious rule applies does not end our analysis regarding duty.

"When determining whether a duty exists, a court considers the following factors: (1) the reasonable foreseeability of injury; (2) the reasonable likelihood of injury; (3) the magnitude of the burden that guarding against injury places on the defendant; and (4) the consequences of placing that burden on the defendant.

"First, as noted above, a duty to warn of open and obvious conditions will not be imposed unless the distraction exception or the deliberate encounter exception applies. We have already discussed these exceptions and find that neither applies in this case.

"Second, with respect to the reasonable likelihood of injury, the law generally considers the likelihood of injury slight when the condition in issue is open and obvious, because it is assumed that persons encountering the potentially dangerous condition of the land will appreciate and avoid the risks.

"Here, the condition of the sidewalk was open and obvious. Therefore, the likelihood of injury factor carries little weight.

"Finally, as to the magnitude of the burden of imposing a duty and the consequences of such a burden, plaintiff suggests that the city should place warnings or barricades around areas of sidewalk under construction. Specifically, plaintiff argues that a section of the Chicago Municipal Code requires the city to erect a fence or railing around construction areas on public ways, that the existence of this ordinance 'demonstrates that it is not unduly burdensome to impose a legal duty since the city both adopted such an ordinance and included its own employees within its ambit and purview,' and that the ordinance demonstrates an easy and non-burdensome manner of satisfying its duty. See Chicago Municipal Code 10-20-605.

"Under section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act, a local public entity is not liable for an injury caused by its failure to initially provide traffic warning signs or restraining devices or barriers. Bonner, 334 Ill.App.3d at 487.

"In Bonner, the plaintiff tripped over a light pole base that contained four bolts protruding about 3 inches from the sidewalk. The court in Bonner noted that section 3-104 acts to immunize a municipality against liability arising from its failure to initially provide a traffic control device, even where such failure might endanger safety.

"The Bonner court further noted that under section 1-207 of the Illinois Vehicle Code, the term 'traffic' includes pedestrians.

"The court in Bonner concluded: 'Because the term "traffic" includes pedestrians under section 1-207 of the Illinois Vehicle Code, the city is not liable for plaintiff's injuries for failure to install rubber cones or wooden horses at the light pole base, irrespective of the ease or burden of doing so. As a matter of public policy, the decision to install signals requires a city traffic planner to balance competing interests and make a judgment call as to which solution would best serve the interests of safety, convenience and cost. Therefore, the city had neither a duty nor liability when it did not initially install warning devices at the scene of plaintiff's injuries.'

"Similar to Bonner, we find section 3-104 of the Tort Immunity Act immunizes a municipality against liability arising from its failure to provide barricades or warning signs to pedestrians. As previously noted, under section 1-207 of the Illinois Vehicle Code, the term 'traffic' includes pedestrians. Therefore, in the context of this case, the city cannot be liable for failing to erect warnings or barricades around the area of sidewalk under construction.

"We note that a plaintiff can sue for damages based on violation of a statute or ordinance only when the legislation is construed to create an implied private right of action. Plaintiff did not allege that section 10- 20-605 of the Chicago Municipal Code created an express or implied private right of action and did not seek damages under that section.

"Moreover, plaintiff could not successfully sue for violation of the ordinance because, for the reasons previously noted, her claim of breach by the city of a duty to barricade the construction area of the sidewalk is undermined by section 3-104 of the Tort Immunity Act.
"Section 3-104 immunizes the city from failure to provide traffic control device barriers, and 'traffic' includes pedestrians. As the court held in Bonner, this includes failure to barricade hazards on the sidewalk, since such barricades are considered traffic control devices.

"In this case, the dangerous condition of the sidewalk was open and obvious. The law does not impose a duty to warn of open and obvious conditions unless the distraction exception or the deliberate encounter exception is found. Here, neither exception applies. The likelihood of injury was slight because it is assumed that persons encountering potentially open and obvious conditions will appreciate and avoid the risks. Finally, the city is immune from liability arising from its failure to initially provide warnings or barricades in the area where plaintiff was injured.

"Given these circumstances, we find that plaintiff has failed to establish the duty element of her negligence claim. Accordingly, summary judgment was proper."

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