                          NO. 4-10-0776         Opinion Filed 3/23/11

                      IN THE APPELLATE COURT

                             OF ILLINOIS

                          FOURTH DISTRICT

STEVEN GARCIA and AMBER GARCIA,        )    Appeal from
          Plaintiffs-Appellants,       )    Circuit Court of
          v.                           )    Champaign County
JACK YOUNG,                            )    No. 07L153
          Defendant-Appellee.          )
                                       )    Honorable
                                       )    Richard P. Klaus,
                                       )    Judge Presiding.
_________________________________________________________________

           JUSTICE POPE delivered the judgment of the court, with
opinion.
          Presiding Justice Knecht and Justice Turner concurred
in the judgment and opinion.

                               OPINION

           On September 8, 2010, the trial court granted defendant

Jack Young's motion for summary judgment.      Plaintiffs Steven and

Amber Garcia appeal, arguing the court erred in granting

defendant's motion because defendant owed plaintiff a duty to

warn Steven Garcia about and protect him from dangerous

conditions on defendant's property.      We affirm.

                             BACKGROUND

           In July 2007, the Garcias filed a two-count complaint

against Young.   In count I of the complaint, Steven sought

damages for injuries he suffered after falling in a pothole on a

private street owned by defendant.    In count II of the complaint,

Amber sought damages for loss of consortium because of her

husband Steven's injuries.   According to the complaint, Steven

lived in the Village of Ludlow on Young Street in a rental
property owned by Young.    Young also owned Young Street, which

was a private drive.

            According to the complaint, prior to the incident in

question, Steven had informed Young that Young Street was in a

state of disrepair and constituted a hazard.    Steven alleged

Young had a duty to exercise reasonable care to keep the road in

reasonably safe condition for individuals lawfully on the

property.    The Garcias alleged Young breached this duty by

failing (1) to repair the potholes in the road, (2) to mark and

identify the potholes, (3) to secure the area where the potholes

were located, and (4) to warn the Garcias about the pothole.

Although not noted in the complaint, Stephen's injury allegedly

occurred when he entered the road to attempt to save his stepson

from an approaching vehicle.

            On June 15, 2010, Young filed a motion for summary

judgment and a memorandum in support of his motion.    For purposes

of the motion for summary judgment, Young did not dispute the

existence, location, or size of the pothole complained of by

plaintiffs.

            According to the memorandum in support of defendant's

motion, Steven's injuries allegedly resulted when he stepped in a

pothole approximately two feet in diameter and eight inches deep.

In arguing for summary judgment, Young relied on the "open and

obvious" doctrine.    Young argued neither the "deliberate

encounter" exception nor the "distraction" exception applied to

the Garcias' claim.


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          In July 2010, the Garcias filed a response to Young's

motion for summary judgment.   The Garcias' response noted Young

Street was a gravel road at the time of the incident.   According

to the response, Young occasionally put down new gravel, leveled

out the gravel with a tractor, and placed "road pack" in the area

of the potholes.   The Garcias noted Young testified in his

deposition he knew people walked on the road and he had concerns

about children being in the street because they might get run

over.

          On September 8, 2010, the trial court held a hearing on

Young's motion for summary judgment.   The trial court noted it

had Young's motion for summary judgment and a memorandum in

support thereof, the Garcias' response to the motion, Young's

reply to the Garcias' response, and deposition transcripts.

          The trial court found the pothole clearly was an "open

and obvious" condition as a matter of law.   The court also found

neither the "deliberate encounter" exception nor the

"distraction" exception applied in this case.   As a result, the

court granted Young's motion for summary judgment.

          This appeal followed.

                            II. ANALYSIS

          "To prevail on a claim of negligence, a plaintiff must

prove, among other things, that defendant owed a duty of care to

the plaintiff."    Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill.

App. 3d 249, 255, 942 N.E.2d 640, 646 (2010).   "[W]hether a duty

exists is a question of law to be decided by the court."


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Kleiber, 406 Ill. App. 3d at 256, 942 N.E.2d at 646.      Courts

consider the following factors in determining whether a duty

exists:   "(1) the reasonable foreseeability of injury to another,

(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."

Kleiber, 406 Ill. App. 3d at 256, 942 N.E.2d at 646.

           As a general rule, a landowner has no duty with regard

to "open and obvious" conditions.       Hope v. Hope, 398 Ill. App. 3d

216, 220, 924 N.E.2d 581, 584 (2010).      The Garcias concede, for

purposes of the motion, the pothole was an "open and obvious"

condition.

           Our supreme court has recognized a "distraction"

exception and a "deliberate encounter" exception to this general

rule.   Sollami v. Eaton, 201 Ill. 2d 1, 15-18, 772 N.E.2d 215,

223-25 (2002).   The Garcias argue their situation falls under

both of these exceptions and the trial court erred in granting

defendant's motion for summary judgment.

                       A. Standard of Review

           We review a trial court's decision to grant a motion

for summary judgment de novo.    Green v. Carlinville Community

Unit School District No. 1, 381 Ill. App. 3d 207, 211, 887 N.E.2d

451, 454 (2008).

           "The purpose of summary judgment is not to

           try a question of fact, but rather to

           determine whether a genuine issue of material


                                - 4 -
           fact exists.    [Citations.]   Summary judgment

           is appropriate only where 'the pleadings,

           depositions, and admissions on file, together

           with the affidavits, if any, show that there

           is no genuine issue as to any material fact

           and that the moving party is entitled to a

           judgment as a matter of law.' [Citation.]"

           Adams v. Northern Illinois Gas Co., 211 Ill.

           2d 32, 42-43, 809 N.E.2d 1248, 1256 (2004).

                B. "Deliberate Encounter" Exception

           Under the "deliberate encounter" exception, the "open

and obvious" rule is inapplicable if the landowner has reason to

anticipate or expect the invitee will proceed to encounter an

"open and obvious" condition because the advantages of doing so

outweigh the apparent risks to a reasonable person in the

invitee’s position.      Kleiber, 406 Ill. App. 3d at 257, 942 N.E.2d

at 648.   The Garcias argued:

                "It is undisputed that prior to the

           accident, Mr. Garcia was aware that potholes

           existed on Young Street, and believed that

           this particular pothole had existed for weeks

           [citation].    Mr. Garcia had not previously

           noticed this specific pothole, but he was

           aware that Young Street was full of similar

           potholes.   [Citation.]   Despite knowing of

           the existence of these potholes, Mr. Garcia


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          made the conscious decision to enter the

          street to retrieve his stepson who had

          entered the path of an oncoming vehicle."

          However, whether Mr. Garcia deliberately encountered

the street itself is not relevant as the street is not the

condition which allegedly caused his injury.   The pothole, not

the street, was the "open and obvious" condition which allegedly

caused plaintiff's injuries.

          Without even discussing whether a reasonable landowner

in Young's position should have reasonably anticipated an

individual might deliberately encounter the pothole, the Garcias’

argument fails because Steven Garcia did not deliberately

encounter the pothole.   In fact, Steven Garcia stated in his

brief he had not specifically noticed this particular pothole.

           The cases relied upon by plaintiffs are

distinguishable from this case.   In those cases, the plaintiffs

deliberately encountered the respective "open and obvious"

conditions.   For example, in Ralls v. Village of Glendale

Heights, 233 Ill. App. 3d 147, 150, 598 N.E.2d 337, 341 (1992),

the plaintiff deliberately encountered a steep, snow-covered

earthen incline. In LaFever v. Kemlite Co., 185 Ill. 2d 380, 392,

706 N.E.2d 441, 448 (1998), the plaintiff deliberately

encountered a work area covered with very slick materials.   In

Rusch v. Leonard, 399 Ill. App. 3d 1026, 1028, 927 N.E.2d 316,

319 (2010), the plaintiff deliberately encountered an

"'unsecured, unprotected and unguarded'" stairwell.   Since Steven


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Garcia did not deliberately encounter the "open and obvious"

condition (the pothole) in this case, this exception does not

apply.

                     C. "Distraction" Exception

           Another exception to the "open and obvious" rule is the

"distraction" exception.   This exception applies if the landowner

has reason to expect or anticipate that an invitee's attention

will be distracted to the extent the invitee will forget about

the condition or will fail to protect himself or herself from the

condition.    Kleiber, 406 Ill. App. 3d at 257, 942 N.E.2d at 647-

48.

           The Garcias cite Clifford v. Wharton Business Group,

L.L.C., 353 Ill. App. 3d 34, 44, 817 N.E.2d 1207, 1216 (2004),

for the proposition a defendant does not have to create or

aggravate a distraction for the "distraction" exception to be

applicable.   In addition, the Garcias cite Clifford for the

proposition foreseeability of the distraction does not require

foreseeability of the specific manner in which a plaintiff is

distracted.   Clifford, 353 Ill. App. 3d at 46, 817 N.E.2d at

1217-18.

           However, we note Sandoval v. City of Chicago, 357 Ill.

App. 3d 1023, 830 N.E.2d 722 (2005), distinguished Clifford and

other similar cases.   The Sandoval court stated:

           "[P]rimarily, in those instances where our

           courts have applied the distraction exception

           to impose a duty upon a landowner, it is


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            clear that the landowner created, contributed

            to, or was responsible in some way for the

            distraction which diverted the plaintiff's

            attention from the open and obvious condition

            and, thus, was charged with reasonable

            foreseeability that an injury might occur."

            Sandoval, 357 Ill. App. 3d at 1030, 830

            N.E.2d at 729.

            The facts in this case are similar to those in

Sandoval.   The plaintiff in Sandoval brought suit against the

defendant after she injured herself by falling in a large hole in

a sidewalk.    Sandoval, 357 Ill. App. 3d at 1024, 830 N.E.2d at

724.   The plaintiff relied on the "distraction" exception to the

"open and obvious" rule.     Sandoval, 357 Ill. App. 3d at 1026, 830

N.E.2d at 725.    The court in Sandoval noted the plaintiff

admitted she was only distracted from the sidewalk by her concern

for the child she was babysitting who had walked out of her

sight.   She was not looking at the ground where she was walking.

The court stated:

            "Defendant in no way was responsible for,

            contributed to, or created this situation,

            which began when plaintiff brought the child

            outside to the parkway.   Accordingly, we find

            that defendant owed no duty to plaintiff to

            warn or otherwise safeguard her from

            potential harm posed by the open and obvious


                                 - 8 -
            sidewalk defect in front of her home, where

            her injury resulted not from a distraction

            that could be reasonably anticipated by

            defendant but, instead, was the result of her

            own inattentiveness in not looking forward

            where she was walking."      Sandoval, 357 Ill.

            App. 3d at 1031, 830 N.E.2d at 730.

The same is true in this case.    The record does not reflect Young

was responsible for, contributed to, or created the situation

which allegedly distracted Steven Garcia.

            Because plaintiff concedes the pothole was an "open and

obvious" condition and we have concluded as a matter of law

neither the "deliberate encounter" exception nor the

"distraction" exception is applicable in this case, Young did not

have a duty to either warn or protect the Garcias from the

condition which allegedly caused Steven Garcia's injury.



                        III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.




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