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                                  Appellate Court                         Date: 2016.11.30
                                                                          15:59:42 -06'00'




                  Bulduk v. Walgreen Co., 2016 IL App (1st) 150166-B



Appellate Court      SAIME SEBNEM BULDUK and ABDULLAH BULDUK,
Caption              Plaintiffs-Appellants, v. WALGREEN COMPANY, an Illinois
                     Corporation, Defendant-Appellee.



District & No.       First District, First Division
                     Docket No. 1-15-0166



Filed                August 29, 2016



Decision Under       Appeal from the Circuit Court of Cook County, No. 12-L-001069; the
Review               Hon. Daniel T. Gillespie, Judge, presiding.



Judgment             Affirmed in part and reversed in part; remanded for further
                     proceedings.

Counsel on           Lane, Le Brocq & Lange, LLP (Stephen K. Le Brocq and Nicholas
Appeal               Lange, of counsel), and Lane Keyfli Law, Ltd. (Nejla K. Lane, of
                     counsel), both of Chicago, for appellants.

                     Sanchez Daniels & Hoffman LLP, of Chicago (John J. Piegore and
                     Edric S. Bautista, of counsel), for appellee.



Panel                JUSTICE HARRIS delivered the judgment of the court, with opinion.
                     Presiding Justice Cunningham concurred in the judgment and opinion.
                     Justice Connors dissented, with opinion.
                                              OPINION

¶1       Plaintiff Saime Sebnem Bulduk appeals the order of the trial court granting defendant
     Walgreen Company’s (Walgreen) motion for summary judgment on her complaint alleging
     negligence, negligent spoliation of evidence, and res ipsa loquitur. On appeal, plaintiff argues
     that the trial court erred in granting summary judgment because a genuine issue of material fact
     exists as to whether the dangerous condition on defendant’s property was open and obvious.
     Plaintiff also argues that Walgreen’s spoliation of its surveillance tapes prevented her from
     establishing the facts necessary to support her negligence claim, and alternatively, that the
     doctrine of res ipsa loquitur applies to establish her negligence claim.
¶2       On October 15, 2015, this court issued an opinion affirming in part, and reversing in part,
     the trial court’s judgment. Defendant filed a petition for rehearing, which this court denied.
     Defendant then filed a petition to the supreme court that was denied on March 30, 2016.
     However, the supreme court issued a supervisory order, directing this court to vacate its
     judgment in the matter and to reconsider in light of Bruns v. City of Centralia, 2014 IL 116998.
     Accordingly, we vacated our October 15, 2015, judgment and issue this opinion in its stead.
     Upon reconsideration, we find Bruns distinguishable and therefore, for the following reasons,
     we reverse the judgment of the trial court on the negligence claim, affirm on the claim for
     negligent spoliation of the evidence, and remand for further proceedings.

¶3                                           JURISDICTION
¶4       The trial court entered its final order disposing of the case on December 15, 2014. Plaintiffs
     filed their notice of appeal on January 13, 2015. Accordingly, this court has jurisdiction
     pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments
     entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶5                                          BACKGROUND
¶6       On April 28, 2010, plaintiff entered a Walgreen store to purchase cosmetics products. The
     cosmetics display began near the door of the store and continued “all the way almost to the
     end.” Plaintiff entered the store to purchase nail polish and browse the makeup selection.
     While in the cosmetics aisle, plaintiff noticed a large, plugged-in cleaning machine placed in
     the middle of the aisle. She “went around it, and [she] was looking at this [sic] items in the
     wall—on the wall” when “something hit [her] right where the tailbone is. It was a very heavy
     piece of equipment, and [she] noticed that it was just falling on [her].” After the incident,
     plaintiff experienced intense pain in her neck, lower back, and occasionally in her leg. She
     stated in her deposition that she still experiences pain and is “only living like ten—20 to 30
     percent of [her] life the way [she] used to live.”
¶7       Nathan John Tauber was the store manager when the incident occurred. He stated that he
     did not generally give directions to employees of Brite Site, an independent company
     Walgreen hired to clean the store in question. He stated, however, that he would not “allow
     them to park [the cleaning machines] in front of—in front of the entrance or exit where people
     can’t get in” and that the store’s policy is to not allow Brite Site to “run the machines while the
     store is open.”



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¶8         On January 31, 2012, plaintiff filed her original negligence complaint against defendant
       Walgreen. Thereafter, plaintiff filed several amended complaints. In her third and final
       amended complaint, she alleged four counts against Walgreen: (1) negligence, (2) negligent
       spoliation of evidence, (3) res ipsa loquitur, and (4) loss of consortium. With respect to
       negligence, plaintiff alleged that while browsing the cosmetics aisle at a Walgreen store, she
       was hit by a cleaning machine that had been left in the middle of the aisle. The machine had
       fallen and hit her lower back, causing permanent injuries. Plaintiff’s negligent spoliation of
       evidence claim alleged that Walgreen failed to download or preserve camera footage from the
       store’s surveillance system on the day of the incident. Plaintiff also alleged that a presumption
       of negligence existed, pursuant to res ipsa loquitur, because the injury resulted from a cleaning
       machine under Walgreen’s control and the individuals operating the machine on the day in
       question left the country after learning of their forthcoming depositions. Finally, plaintiff
       alleged loss of consortium for her husband, plaintiff Abdullah Bulduk, based on her injuries.
¶9         Walgreen filed motions for summary judgment as to the negligence, negligent spoliation of
       evidence, and res ipsa loquitur counts. It also filed a motion to dismiss plaintiff’s claim for loss
       of consortium.1 In its motion for summary judgment as to negligence, Walgreen claimed that
       the cleaning equipment injuring plaintiff was owned by Brite Site, a company Walgreen hired
       to clean the store in question. Walgreen argued that it did not owe a duty to plaintiff, since it
       exercised no control over Brite Site employees, their work, or Brite Site’s cleaning machines.
       Walgreen further argued that Brite Site was an independent contractor that retained control
       over its own activities, and its employees were not employees, agents, or servants of Walgreen.
       In response, plaintiff argued that Walgreen was liable because it retained a supervisory power
       to prevent Brite Site from using its cleaning machines in a harmful manner, and Walgreen
       provided cleaning supplies to Brite Site which were required for the operation of the cleaning
       machine at issue. Walgreen replied that it did not supervise the work of Brite Site and therefore
       had no liability.
¶ 10       In its motion for summary judgment as to negligent spoliation of evidence, Walgreen
       claimed that it did not have a duty to preserve evidence unless plaintiff could establish that an
       agreement, contract, statute, special circumstance, or voluntary undertaking had given rise to a
       duty to preserve the evidence, and that a reasonable person in Walgreen’s position should have
       foreseen that the evidence was material to a potential civil action. Walgreen argued that
       plaintiff could not establish these factors because the surveillance footage at issue did not
       record the area of the store where the injury occurred, and therefore a reasonable person would
       not foresee that such evidence would be relevant to a cause of action. Plaintiff responded that
       based on the evidence, a minimum of three cameras could have captured the incident and the
       only surveillance downloaded was the tape by the entrance of the store.
¶ 11       In its motion for summary judgment as to res ipsa loquitur, Walgreen argued that it did not
       owe plaintiff a duty of care, and thus the claim must fail. Plaintiff responded that Walgreen
       exercised control over the cleaning machine at issue and allowed Brite Site to bring the
       machine in the store while customers were shopping, thus rendering the doctrine of res ipsa
       loquitur applicable.
¶ 12       The trial court granted Walgreen’s motions for summary judgment as to the negligence
       claim, the negligent spoliation of evidence claim, and the res ipsa loquitur claim. We assume

          1
           Loss of consortium is not an issue on appeal.

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       each of these motions were granted without a hearing, as no transcripts of any hearings are
       included in the record on appeal. Plaintiff now appeals.

¶ 13                                            ANALYSIS
¶ 14       Plaintiff contends that the trial court erred in granting summary judgment in favor of
       Walgreen on plaintiffs’ negligence claims. Summary judgment is proper where the pleadings,
       depositions, admissions, and affidavits on file, viewed in the light most favorable to the
       nonmoving party, show that no genuine issue of material fact exists and the moving party is
       entitled to judgment as a matter of law. Cochran v. George Sollitt Construction Co., 358 Ill.
       App. 3d 865, 872 (2005). Summary judgment is not proper where material facts are in dispute
       or reasonable persons might draw different inferences from the undisputed facts. Adams v.
       Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). We review the trial court’s grant of
       summary judgment de novo. Cochran, 358 Ill. App. 3d at 872.
¶ 15       To state a cause of action for negligence, plaintiff must show that defendant owed her a
       duty, defendant breached that duty, and defendant’s breach was the proximate cause of
       plaintiff’s injury. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 228 (2000).
       Generally, a business operator owes its invitees a duty to exercise reasonable care in
       maintaining the premises in a reasonably safe condition for use by its invitees. Ward v. K mart
       Corp., 136 Ill. 2d 132, 141 (1990). To determine whether a duty exists, we consider the
       following factors: (1) the foreseeability that defendant’s conduct will result in injury to
       another; (2) the likelihood of injury; (3) the burden of guarding against injury; and (4) the
       consequences of placing such a burden on defendant. Green v. Jewel Food Stores, Inc., 343 Ill.
       App. 3d 830, 832 (2003). However, under common law there is no duty to protect invitees
       against dangers that are known to them or from dangerous conditions that are open and
       obvious. Ward, 136 Ill. 2d at 142.
¶ 16       An exception to the open and obvious danger rule exists when one “ ‘has reason to expect
       that the invitee’s attention may be distracted, so that [she] will not discover what is obvious, or
       will forget what [she] has discovered, or fail to protect [herself] against it.’ ” Id. at 149-50
       (quoting Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)). In these cases, the fact
       that the danger is known or obvious is not “ ‘conclusive in determining the duty of the
       possessor, or whether [it] has acted reasonably under the circumstances.’ ” Id. at 150 (quoting
       Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)). The supreme court in Ward held
       that in determining whether the distraction exception applies, the proper inquiry is “whether
       the defendant should reasonably anticipate injury to those entrants on [its] premises who are
       generally exercising reasonable care for their own safety, but who may reasonably be expected
       to be distracted *** or forgetful of the condition after having momentarily encountered it.” Id.
       at 152. As will be discussed later in the opinion, we find it reasonably foreseeable that a
       customer at a Walgreen store would actually be distracted while searching for items on a shelf
       and not notice the open and obvious danger posed by a large cleaning machine left in the
       middle of the shopping aisle.
¶ 17       Bruns is distinguishable on the facts and does not compel a different result. In Bruns, the
       plaintiff parked on the street in front of an eye clinic where she had an appointment. Bruns,
       2014 IL 116998, ¶ 4. As she walked toward the clinic, she stubbed her toe on a crack in the
       sidewalk, which caused her to fall and injure her arm, leg, and knee. Id. When she fell, the
       plaintiff was looking at the door of the clinic and the steps. She noticed the defect in the

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       sidewalk on her visits to the clinic in the past three months, and was certain she noticed it on
       the day of the incident. Id.
¶ 18       The plaintiff filed a negligence complaint against the city for failure to maintain, inspect,
       and repair the sidewalk and for permitting it to remain in a dangerous condition. The city filed
       a motion for summary judgment, arguing that the defect was an open and obvious danger and
       therefore it was not required to foresee, or protect the plaintiff from, the dangerous condition.
       Id. ¶¶ 5, 6. The trial court granted the summary judgment motion, but on appeal the appellate
       court reversed, finding that the city had a duty to fix the defect and whether it breached its duty
       was a question of fact. Id. ¶ 9. The appellate court also found that the distraction exception to
       the open and obvious danger argument applied. Id.
¶ 19       The supreme court discussed the distraction exception, noting that the exception applied
       only “where evidence exists from which a court can infer that plaintiff was actually distracted.”
       Id. ¶ 22. The court then acknowledged that it “has not adopted a precise definition of what
       constitutes ‘distraction’ for purposes of” the distraction exception, but it would review case
       law for “general observations” about the exception. Id. ¶ 23.
¶ 20       The supreme court looked at Ward, 136 Ill. 2d 132 (plaintiff injured when he collided with
       a five-foot tall post located outside the customer entrance while carrying a large mirror he
       purchased), Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430 (1990) (plaintiff
       injured when he stepped into a deep tire rut as he exited a portable bathroom because he was
       looking out for material being thrown off a nearby balcony), Rexroad v. City of Springfield,
       207 Ill. 2d 33 (2003) (plaintiff injured when he stepped into a hole in a parking lot adjacent to
       the football field after being instructed to take a helmet to a player), and American National
       Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14 (1992) (plaintiff, a
       billboard painter, was electrocuted when he came into contact with a low-hanging high-voltage
       power line while walking on the walkrail). Bruns, 2014 IL 116998, ¶¶ 24-27.
¶ 21       After analyzing these cases, the court concluded that “[i]n each of these cases, some
       circumstance was present that required the plaintiff to divert his or her attention from the open
       and obvious danger” and the defendant could reasonably foresee the distraction. Id. ¶¶ 28, 29.
       Unlike the plaintiffs in those cases, the plaintiff in Bruns “failed to identify any circumstance,
       much less a circumstance that was reasonably foreseeable by the City, which required her to
       divert her attention from the open and obvious sidewalk defect.” (Emphasis in original.) Id.
       ¶ 30. Rather, the only distraction was that the plaintiff was looking at the door and steps of the
       clinic rather than at the sidewalk. The supreme court concluded “that the mere fact of looking
       elsewhere does not constitute a distraction.” Id. ¶ 22.
¶ 22       Defendant Walgreen welcomes customers like plaintiff to its store to browse and purchase
       items. Plaintiff here stated that she was in the store for the purpose of browsing and purchasing
       cosmetics. The large cosmetics section started near the door and continued “all the way almost
       to the end.” Plaintiff browsed the makeup selection and noticed a large, plugged-in cleaning
       machine placed in the middle of the aisle. She “went around it,” as she continued to browse the
       section looking for her items. While she reached for items on the shelf, plaintiff alleges that the
       cleaning machine struck her in her back. She alleges that her focus on finding the cosmetic
       items she wanted to purchase distracted her from noticing the danger the machine posed.
¶ 23       Unlike the plaintiff in Bruns, plaintiff was performing a task, supported by defendant, in
       looking at the cosmetics on the shelf; she was not merely “looking elsewhere.” Defendant also
       knew the cleaning machines were being used at its store on the day in question, and recognized

                                                    -5-
       that the machines could pose a risk to customers. The store manager stated that he would not
       “allow them to park [the cleaning machines] in front of—in front of the entrance or exit where
       people can’t get in” and that the store’s policy is to not allow Brite Site to “run the machines
       while the store is open.”
¶ 24        The parties disagree on whether plaintiff was actually distracted so as to invoke the
       distraction exception to the open and obvious danger rule. Although plaintiff acknowledges
       she noticed the cleaning machine, she alleges that she was distracted by the task at hand from
       recognizing the danger it posed. “Whether in fact the condition itself served as adequate notice
       of its presence or whether additional precautions were required to satisfy the defendant’s duty
       are questions properly left to the trier of fact.” Ward, 136 Ill. 2d at 156. “[W]hen a court cannot
       conclude as a matter of law that a condition posed an open and obvious danger, then ‘the
       obviousness of the danger is for the jury to determine.’ ” Duffy v. Togher, 382 Ill. App. 3d 1, 8
       (2008) (quoting Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1044 (1994)). Since a genuine
       issue of material fact exists, the trial court’s grant of summary judgment was erroneous.
¶ 25        Defendant disagrees, citing True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676,
       680 (2000), Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 259 (2010), and
       Kuhn v. Goedde, 26 Ill. App. 2d 123, 126 (1960). However, these cases are distinguishable. In
       True and Kleiber, the plaintiffs offered no evidence or testimony that they were distracted from
       noticing the dangerous conditions. In Kuhn, there was no evidence that the land owner even
       knew that the tractor causing the injury was on the premises on the day of the accident. We are
       not persuaded by defendant’s argument here.
¶ 26        Our dissenting colleague (infra ¶ 35) states, “there was no question that the presence of the
       cleaning machine” in the middle of the aisle was an open and obvious danger. However, like
       the trial court’s ruling, that is a conclusion based on personal opinion without any explanation
       as to how and upon what factors the “open and obvious danger” conclusion was reached. We
       can only say that without question there existed a cleaning machine in the middle of the aisle.
       Upon hearing all the evidence reasonable persons may very well conclude either result, but
       most importantly it is a question of fact to be determined by the trier of fact. Furthermore,
       “[t]he existence of an open and obvious danger is not an automatic per se bar to the finding of
       a legal duty on the part of a defendant.” Bruns, 2014 IL 116998, ¶ 19 (courts must still apply
       traditional duty analysis to the particular facts of a case, even where the danger was open and
       obvious). We have already discussed foreseeability. If there was a reasonable likelihood of
       injury from accidents involving the large machine, the burden of guarding against such injury
       for defendant would not be significant or costly. Defendant need only ensure that the machines
       are not out or in use while the store is open to customers, which appears to be its normal policy
       according to the store manager’s testimony. Therefore, finding a duty on the part of defendant
       here to protect its customers from the dangers of a cleaning machine regularly used in its
       business is justified, even if the machines pose an open and obvious danger.
¶ 27        Plaintiff also contends that the trial court erred in granting summary judgment on her
       negligent spoliation claim. A defendant may owe “a duty of due care to preserve evidence if a
       reasonable person in the defendant’s position should have foreseen that the evidence was
       material to a potential civil action.” Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 195
       (1995). Furthermore, in a negligence claim involving the loss or destruction of evidence,
       plaintiff must allege sufficient facts showing that such loss or destruction caused her to be
       unable to prove her underlying suit. Id. at 196.

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¶ 28       In her complaint, plaintiff alleged “[o]n information and belief” that video evidence of the
       accident existed but was not preserved by defendant. However, in its motion for summary
       judgment, defendant stated that all surveillance video footage from the evening of the accident
       was reviewed, and any footage showing plaintiff was sent to the insurer. The only footage
       showing plaintiff was when she entered and exited the store. The two cameras that would have
       captured footage in the cosmetics area were not focused on the section where plaintiff was
       injured. This testimony is undisputed. Since the video footage did not record the incident, its
       loss or destruction could not cause plaintiff to be unable to prove her case. Therefore, summary
       judgment as to the negligent spoliation claim was proper. Due to our disposition of the case, we
       need not address plaintiff’s contention in the alternative that the doctrine of res ipsa loquitur
       applies to establish her negligence claim.
¶ 29       For the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed
       in part, and the cause remanded for further proceedings.

¶ 30       Affirmed in part and reversed in part; remanded for further proceedings.

¶ 31       JUSTICE CONNORS, dissenting.
¶ 32       The majority opinion concludes that summary judgment in favor of Walgreen was
       improper on plaintiff’s claim of negligence because she established a triable issue as to
       whether Walgreen owed her a duty. As the majority notes, there are certain factors that our
       supreme court has identified as relevant to the existence of a duty: the “reasonable
       foreseeability” of injury, the likelihood of injury, the magnitude of the burden of guarding
       against it, and the consequence of placing that burden upon defendant. Ward v. K mart Corp.,
       136 Ill. 2d 132, 140-41 (1990).
¶ 33       The first factor in determining duty is foreseeability, as no legal duty arises unless the harm
       is reasonably foreseeable. Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 256
       (2010). In a situation where a plaintiff alleges that an injury was caused by a condition of the
       defendant’s property, and the plaintiff was an invitee on the property, whether the injury is
       reasonably foreseeable is governed by section 343 of the Restatement (Second) of Torts, which
       sets forth the general rule on the duty of care owed by possessors of land to invitees. Id. Section
       343 provides:
                “A possessor of land is subject to liability for physical harm caused to his invitees by a
                condition on 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 § 343 (1965).
¶ 34       An exception to this general rule is set forth in section 343A of the Restatement, which
       provides as follows:
                    “A possessor of land is not liable to his invitees for physical harm caused by any
                activity or condition on the land whose danger is known or obvious to them, unless the

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                possessor should anticipate the harm despite such knowledge or obviousness.”
                Restatement (Second) of Torts § 343A(1) (1965).
¶ 35       Illinois courts adopted this “known and obvious” danger rule as an exception to the duty of
       care owed by possessors of land to invitees, recognizing that it was not foreseeable to a
       possessor of land that an invitee would be injured when the condition or danger was open and
       obvious. Kleiber, 406 Ill. App. 3d at 257. Our supreme court has noted, and the comments to
       section 343A state, that the word “known” denotes the existence of the condition or activity, as
       well as the danger it involves, and that the word “obvious” means that both the condition and
       the risk would be recognized by a reasonable man exercising ordinary perception, intelligence,
       and judgment. Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435 (1990);
       Restatement (Second) of Torts § 343A, cmt. b (1965). Here, plaintiff’s own testimony during
       her deposition was that she saw the cleaning machine in the middle of the aisle, and that it was
       on stable ground and did not look like it was going to fall. Accordingly, I would find that there
       was no question that the presence of the cleaning machine, and any danger it may have
       presented, was known and obvious. See True v. Greenwood Manor West, Inc., 316 Ill. App. 3d
       676, 680 (2000) (evidence showed that the fan was plainly visible, that plaintiff saw the fan
       when she entered the room and initially walked past it without any problem, and nothing
       obstructed her view).
¶ 36       However, there are two limited exceptions to this “known and obvious” danger rule. The
       exception applicable to the case at bar is the distraction exception, which is that foreseeability
       may be found where a landowner knows or should know that an entrant may be distracted,
       such that the entrant may fail to discover the known and obvious danger or will forget what she
       has discovered. Kleiber, 406 Ill. App. 3d at 257.
¶ 37       In True, 316 Ill. App. 3d at 680, this court found that the distraction exception did not apply
       where plaintiff offered no evidence that she was distracted when she tripped over a fan that was
       plainly visible, and that plaintiff saw when she entered the room and initially walked past
       without any problem. Similarly in Bruns v. City of Centralia, 2014 IL 116998, ¶ 30, our
       supreme court found that the plaintiff, who tripped on a defect in the sidewalk while walking
       into a clinic, failed to identify any circumstances, much less one that was reasonably
       foreseeable by the City, which required her to divert her attention from the open and obvious
       defect, or otherwise prevented her from avoiding the defect. In Bruns, the only circumstance
       upon which plaintiff relied was that she was not looking at the sidewalk, but rather toward the
       door and steps of the clinic. Id. Our supreme court found that simply looking elsewhere does
       not constitute a legal distraction, and that if it did, the distraction exception would swallow the
       open and obvious rule. Id. ¶ 34.
¶ 38       Here, there was no evidence presented in the pleadings that would establish that plaintiff
       was distracted at the time of her alleged injury, such that she failed to discover the cleaning
       machine in the aisle or that she forgot that it was there. In fact, as stated above, plaintiff
       admitted in her deposition testimony that she saw the cleaning machine in the middle of the
       aisle and that she purposefully walked around the cleaning machine to avoid coming in contact
       with it. Plaintiff also failed to present any evidence or testimony that she became so distracted
       after having encountered the cleaning machine or that she had forgotten about its presence.
       While plaintiff alleged that she was looking at merchandise, this should not negate the fact that
       she saw the cleaning machine and purposely walked around it. The presence of merchandise on
       the shelves should not automatically constitute a legal distraction to customers. To me, this is

                                                    -8-
       not a set of circumstances in which the narrow distraction exception would apply, and I would
       find that plaintiff’s injury was not reasonably foreseeable.
¶ 39       Turning to the remaining three factors in the duty analysis as cited above—the likelihood
       of plaintiff’s injuries, the magnitude of the burden defendant would bear if the duty were
       placed on defendant, and the consequences of placing the burden on defendant—I would then
       note that the likelihood of injury is generally considered to be slight when a condition is open
       and obvious because it is assumed that a person encountering the condition will appreciate and
       avoid the risk it presents. Kleiber, 406 Ill. App. 3d at 260 (citing True v. Greenwood Manor
       West, Inc., 316 Ill. App. 3d 676, 681 (2000)). Since the cleaning machine sitting in the middle
       of the aisle was open and obvious, I would find that the likelihood of injury in this case was
       slight.
¶ 40       I also would find that to impose a duty with regard to the cleaning machine would impose a
       great burden on Walgreen. It would require Walgreen to constantly monitor the aisles and
       immediately remove anything from the aisles that a customer might come in contact with. See
       True, 316 Ill. App. 3d at 677-78 (although the cost of removing the fan, the open and obvious
       danger, when not in use would be slight, the cost of taking like measures with respect to other
       similar objects with which visitors might collide would be great).
¶ 41       In light of the foregoing considerations, I would find that Walgreen did not owe a duty to
       plaintiff and that the trial court did not err in granting summary judgment on the issue of
       negligence in favor of Walgreen.




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