                                   2018 IL App (4th) 170669                            FILED
                                                                                     August 14, 2018
                                         NO. 4-17-0669                                Carla Bender
                                                                                  4th District Appellate
                                 IN THE APPELLATE COURT                                 Court, IL

                                          OF ILLINOIS

                                      FOURTH DISTRICT

 FREDDIE WINTERS JR.,                                      )   Appeal from the
          Plaintiff-Appellant,                             )   Circuit Court of
          v.                                               )   McLean County
 MIMG LII ARBORS AT EASTLAND, LLC, d/b/a                   )   No. 15L12
 Arbors at Eastland, and CHANGING SEASONS                  )
 LAWN LANDSCAPE, LLC,                                      )
          Defendants-Appellees.                            )
                                                           )
                                                           )   Honorable
                                                           )   Paul G. Lawrence,
                                                           )   Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Presiding Justice Harris and Justice Cavanagh concurred in the judgment and
               opinion.
                                           OPINION

¶1             In June 2015, plaintiff, Freddie Winters Jr., filed a two-count complaint against

MIMG LII Arbors at Eastland, LLC, and Changing Seasons Lawn Landscape, LLC (hereinafter,

Arbors and Changing Seasons, respectively). Plaintiff’s complaint stated that he was a tenant of

Arbors and asserted that Changing Seasons had a contractual obligation to clear snow from the

apartment complex. Plaintiff’s complaint further asserted that in January 2014, Changing Sea­

sons pushed snow from Arbors’ parking lot onto a sidewalk, with the result that the sidewalk was

“blocked by a large mound of snow” that “forced the [p]laintiff to navigate around the snow

pile” and caused him to “slip and [fall] due to the unnatural accumulation of snow.”

¶2             Count I of plaintiff’s complaint alleged that Arbors had a duty to exercise reason­
able care for the safety of the tenants upon its property and that it breached this duty. Count II

alleged that Changing Seasons owed plaintiff a duty that it breached when it negligently placed

the pile of snow on the sidewalk.

¶3              Arbors and Changing Seasons each filed motions for summary judgment in which

each argued that it owed no duty to plaintiff because the snow pile was an open and obvious

condition. In March 2017, plaintiff filed responses to both motions for summary judgment, argu­

ing that genuine issues of material fact remained as to whether the snow pile was open and obvi­

ous. Alternatively, plaintiff argued that (1) the deliberate encounter exception applied or (2) he

was owed a duty under a traditional duty analysis.

¶4              In April 2017, the trial court granted the motions for summary judgment. The

court concluded that “plaintiff has failed to raise a genuine issue of material fact *** on the issue

of duty.” The court further concluded that “the large pile of snow and ice on which plaintiff fell

was open and obvious as a matter of law and that the deliberate encounter exception does not

apply to the facts of this case.”

¶5              Plaintiff appeals, arguing only that the trial court erred by granting summary

judgment because (1) a genuine issue of material fact remained as to whether the unnatural ac­

cumulation of snow and ice was an open and obvious condition, (2) a genuine issue of material

fact existed as to whether the deliberate encounter exception to the open and obvious rule ap­

plied, and (3) plaintiff is owed a duty as a matter of law under a traditional duty analysis. We

disagree and affirm.

¶6                                      I. BACKGROUND

¶7                                       A. The Complaint

¶8              In June 2015, plaintiff filed a two-count first amended complaint against Arbors



                                                -2­
and Changing Seasons. Plaintiff’s complaint stated that he was a tenant of an apartment complex

that Arbors owned and operated and asserted that Changing Seasons had a contractual obligation

with Arbors to clear snow from the parking lot.

¶9             Plaintiff’s complaint further asserted that in January 2014, Changing Seasons

pushed snow from Arbors’ parking lot onto a sidewalk, resulting in the snow completely cover­

ing a portion of the sidewalk. The complaint further alleged that in January 2014, plaintiff left his

apartment to walk to Arbors’ on-site laundry facility, which was “blocked by a large mound of

snow” that “forced the [p]laintiff to navigate around the snow pile,” causing him to “slip and

[fall] due to the unnatural accumulation of snow.” The complaint also asserted that he suffered

serious physical injury.

¶ 10           Count I of plaintiff’s complaint alleged that Arbors had a duty to exercise reason­

able care for the safety of the tenants upon its property and that it was negligent by (1) failing to

supervise snow removal from the parking lot so as not to create adverse conditions for its ten­

ants, (2) allowing a snow pile created from snow removal operations to block the sidewalk,

(3) failing to warn plaintiff of a dangerous condition on the property, (4) failing to adequately

inspect the premises to prevent an unnatural accumulation of snow, (5) failing to provide a safe

and alternative path from plaintiff’s building to the on-site laundry facility, and (6) allowing

conditions to exist on the property that imperiled the safety of one lawfully on the premises.

Plaintiff further asserted that these breaches caused his injuries.

¶ 11           Count II alleged that Changing Seasons owed plaintiff a duty of reasonable care

when it performed snow removal services. Plaintiff contended that Changing Seasons breached

this duty by (1) failing to properly remove snow from the Arbors parking lot, (2) failing to

properly supervise its agents, servants, and/or employees during snow removal operations so as



                                                 -3­
not to create adverse conditions for the apartment complex’s tenants, (3) pushing a snow pile

from the parking lot onto the sidewalk area during snow removal operations, and (4) allowing a

snow pile created during snow removal operations to block the sidewalk. Plaintiff asserted that

he was injured because of these breaches.

¶ 12                       B. Arbors’ and Changing Seasons’ Answers

¶ 13           In July 2015, Arbors filed an answer to plaintiff’s complaint, which, in pertinent

part, asserted the affirmative defenses of (1) comparative negligence and (2) the open and obvi­

ous doctrine. In December 2016, Changing Seasons filed an answer to the complaint, asserting

the affirmative defense of contributory negligence.

¶ 14                           C. Depositions and Other Evidence

¶ 15           During depositions, the parties often used an image of Arbors from Google Maps

to illustrate the layout of the apartment complex. Similarly, we take judicial notice of an image

of Arbors from Google Maps for the purpose of better understanding the statements made during

depositions. People v. Clark, 406 Ill. App. 3d 622, 632-34, 940 N.E.2d 755, 766-67 (2010) (the

Second District took judicial notice of an image from Google Maps to better understand state­

ments made at trial). To better aid the reader, we have labeled the relevant locations and objects

and included a compass rose.




                                               -4­
¶ 16                                      1. The Plaintiff

¶ 17           Plaintiff testified that he was a long-term Arbors’ tenant and was familiar with the

layout of the apartment complex. He lived in building 9, which forms an “L shape” with building

10. Building 9 runs west to east, and building 10 runs north to south. The laundry facility was in

the northern end of building 10.

¶ 18           Plaintiff testified that on the afternoon of January 19, 2014, he left his apartment

for the laundry facility, exiting on the north side of building 9. He then proceeded west on the

sidewalk, and when that sidewalk ended, he proceeded north upon the sidewalk that runs parallel

with building 10. He testified that there was a large pile of snow on this northern sidewalk. He

acknowledged that he saw this pile of snow before reaching it, and his visibility was not com­


                                                -5­
promised. Plaintiff testified that there was a cutout in the middle of the snow pile, where it ap­

peared other people had walked through. With his laundry basket in hand, plaintiff walked

through the cutout in the snow pile. He testified that he was able to see where he was stepping

while doing so, and he knew he was walking on snow and ice. Plaintiff testified that while walk­

ing through the snow pile, he fell and broke his ankle.

¶ 19            Plaintiff acknowledged that he was aware at the time of the accident that there

were other ways to reach the laundry facility from his apartment. One alternative route was to

exit the north side of building 9, walk west on the sidewalk, and then, once that sidewalk ended,

walk south on the sidewalk in between building 9 and building 10. This path would eventually

end with plaintiff entering the western side building 10.

¶ 20            A second alternative path would be to exit the south side of building 9, walk west

on the sidewalk, and eventually enter building 10 on the western side. Plaintiff admitted that the­

se alternative paths were an “option.”

¶ 21                                       2. The Witness

¶ 22            Carmen Ashby, a witness to the accident, testified that she was at Arbors on Janu­

ary 19, 2014, to visit her daughter. She looked away after seeing plaintiff walking with a basket

of clothes. She heard a “pop,” and when she turned around, plaintiff had fallen. She stated she

was approximately 30 to 40 feet away from plaintiff. She went over to check on him because he

was not moving. She then called emergency services because plaintiff had a bone protruding

from his leg.

¶ 23                            3. The Owner of Changing Seasons

¶ 24            Brandt Bollmann testified that he is the owner of Changing Seasons. During Jan­

uary 2014, his company had a contract to clear snow from the “drive lanes” of the Arbors’ park­



                                                -6­
ing lots. He stated that his company was not required to clear snow from the sidewalks but could

do so for an extra charge.

¶ 25           Brandt stated that Arbors had designated areas where Changing Seasons was to

pile snow. By December 2013, Brandt had already filled the designated areas with snow. He then

gave Stephanie Lawrence, the Arbors’ manager, the option of either hauling the snow away or

finding other locations to push snow. Brandt testified that Lawrence said to push snow “any­

where that we could viably put snow outside of blocking parking spaces and parking lots.”

¶ 26           Brandt stated that he and an employee cleared the Arbors’ parking lot during the

early morning of January 19, 2014. His employee drove a skid loader to push the snow, and he

followed behind in a truck spreading salt. He admitted that his employee pushed snow from the

parking lot onto the sidewalk in front of building 10. Brandt believed this was an “acceptable

result” because Lawrence “basically told us that anywhere we could put snow to go ahead and

put it [there].” Brandt further stated that Arbors’ “maintenance crew [was] responsible for side­

walks, so [the pile of snow] was not our responsibility.” Brandt later acknowledged that Law­

rence did not specifically say to push snow on the sidewalks and that, within the parameters of

Lawrence’s instructions, his employee had discretion of where to push the snow.

¶ 27                             4. The Maintenance Technician

¶ 28           Eugene Fordham testified that he was an Arbors’ maintenance technician. He

works with three other people, and during the early morning of January 19, 2014, their job was to

remove snow from the apartment’s sidewalks and stoops. He further explained that Changing

Seasons clears snow from the parking lots.

¶ 29           Fordham testified that Changing Seasons pushed a “big pile” of snow onto the

sidewalk on the eastern side of building 10. He explained that this pile covered the entire width



                                               -7­
of a section of the sidewalk and was so large and hard that his team could not remove it with

snowblowers. (A snowblower is a machine used to clear snow from sidewalks or driveways.)

The maintenance technicians did not inform the property manager of the condition because it

was a Sunday. Fordham reported the condition to the property manager on January 20, 2014,

which was a Monday.

¶ 30                            5. The Arbors’ Property Manager

¶ 31           Lawrence was the Arbors’ property manager during January 2014. She testified

that the Arbors’ maintenance technicians were responsible for clearing snow from the sidewalks

and entryways of the property. The Arbors’ parking lot and sidewalks were common areas, and

Changing Seasons was contractually obligated to clear snow from the Arbors’ parking lot. She

further noted that, for an extra charge, Changing Seasons could clear snow from the Arbors’

sidewalk.

¶ 32           On January 20, 2014, Lawrence became aware of the pile of snow at issue. She

called Changing Seasons that afternoon to “push the pile of snow further back [into] the yard in­

stead of blocking the sidewalk.” Changing Seasons charged Arbors $404.50 to clear the side­

walk. Lawrence denied that she ever authorized Changing Seasons to push snow onto the side­

walk. She further testified that Changing Seasons never told her that it piled snow onto the side­

walk.

¶ 33                                    6. Other Evidence

¶ 34           The parties also submitted other evidence to the trial court, including a layout of

the apartment complex, pictures of the snow pile, pictures of the sidewalk, medical records, Ar­

bors’ contract for snow removal services with Changing Seasons, plaintiff’s lease with Arbors,

and various other documents.



                                               -8­
¶ 35                          D. The Motions for Summary Judgment

¶ 36             In December 2016, Changing Seasons filed a motion for summary judgment, ar­

guing that it owed no duty to plaintiff because the snow pile was an open and obvious condition.

In February 2017, Arbors filed a motion for summary judgment, also arguing that it owed no du­

ty to plaintiff because the snow pile was an open and obvious condition.

¶ 37             In March 2017, plaintiff filed responses to both motions for summary judgment,

arguing that genuine issues of material fact remained as to whether the snow pile was an open

and obvious condition. Alternatively, assuming the snow pile was an open and obvious condi­

tion, plaintiff argued that (1) the deliberate encounter exception applied or (2) he was still owed a

duty under a traditional duty analysis. Plaintiff also argued to the trial court that Changing Sea­

sons was not entitled to raise the open and obvious defense because it was not an owner or occu­

pier of the property. We note that on appeal, plaintiff does not argue that Changing Seasons was

not an owner or occupier of the property and was therefore not entitled to raise the open and ob­

vious defense.

¶ 38                  E. The Trial Court’s Order Granting Summary Judgment

¶ 39             In April 2017, the trial court granted both defendants’ motions for summary

judgment. The court concluded that “plaintiff has failed to raise a genuine issue of material fact

*** on the issue of duty.” The court further concluded that “the large pile of snow and ice on

which plaintiff fell was open and obvious as a matter of law and that the deliberate encounter

exception does not apply to the facts of this case.”

¶ 40             This appeal followed.

¶ 41                                       II. ANALYSIS

¶ 42             Plaintiff appeals, arguing only that the trial court erred by granting summary



                                                 -9­
judgment because (1) a genuine issue of material fact remained as to whether the unnatural ac­

cumulation of snow and ice was an open and obvious condition, (2) a genuine issue of material

fact existed as to whether the deliberate encounter exception to the open and obvious rule ap­

plied, and (3) plaintiff is owed a duty as a matter of law under a traditional duty analysis. We

disagree.

¶ 43                   A. Summary Judgment and the Standard of Review

¶ 44           Summary judgment is proper only if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016).

When ruling on a motion for summary judgment, courts consider all of the evidence in the light

most favorable to the nonmoving party. Country Preferred Insurance Co. v. Groen, 2017 IL App

(4th) 160028, ¶ 17, 69 N.E.3d 911. To survive a motion for summary judgment, the plaintiff

must present a factual basis that would arguably entitle him to a judgment. Essig v. Advocate

BroMenn Medical Center, 2015 IL App (4th) 140546, ¶ 38, 33 N.E.3d 288. If the plaintiff fails

to establish any element of the cause of action, summary judgment for the defendant is the prop­

er result. Id. A court should grant summary judgment only if the right of the moving party is

clear and free from doubt. Evans v. Brown, 399 Ill. App. 3d 238, 243, 925 N.E.2d 1265, 1270

(2010). A trial court’s entry of summary judgment is reviewed de novo. Id. at 244.

¶ 45           To state a cause of action for negligence, a plaintiff must allege that (1) the de­

fendant owed plaintiff a duty, (2) the defendant breached this duty, and (3) that this breach was

the proximate cause of plaintiff’s resulting injuries. Lucasey v. Plattner, 2015 IL App (4th)

140512, ¶ 27, 28 N.E.3d 1046. If no duty exists, then summary judgment for the defendant is

proper. Pence v. Northeast Illinois Regional Commuter R.R. Corp., 398 Ill. App. 3d 13, 17, 923

N.E.2d 854, 857 (2010).



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¶ 46                                B. The Existence of a Duty

¶ 47                           1. The Four Traditional Duty Factors

¶ 48            Whether the law imposes a duty of reasonable care upon a defendant for the ben­

efit of the plaintiff depends upon the nature of their relationship. Simpkins v. CSX Transporta­

tion, Inc., 2012 IL 110662, ¶ 18, 965 N.E.2d 1092. When determining whether a duty exists,

courts primarily consider the four traditional duty factors. Id. These four duty factors are (1) the

likelihood of injury, (2) the reasonable foreseeability of injury, (3) the magnitude of the burden

of guarding against the injury, and (4) the consequences of placing that burden on the defendant.

Id. Courts also consider public policy when determining whether a duty exists. Id. ¶ 17. If a duty

is found to exist, the general rule is that a defendant owes his or her invitees and licensees a duty

of reasonable care under the circumstances. Grant v. South Roxana Dad’s Club, 381 Ill. App. 3d

665, 673, 886 N.E.2d 543, 551 (2008).

¶ 49                            2. The Open and Obvious Doctrine

¶ 50           The open and obvious doctrine affects the first and second duty factors. Bruns v.

City of Centralia, 2014 IL 116998, ¶ 19, 21 N.E.3d 684; Wilfong v. L.J. Dodd Construction, 401

Ill. App. 3d 1044, 1056, 930 N.E.2d 511, 523 (2010).

¶ 51           A condition on the land is “open and obvious” when a reasonable person in the

plaintiff’s position, exercising ordinary perception, intelligence, and judgment, would recognize

both the condition and the risk involved. Olson v. Williams All Seasons Co., 2012 IL App (2d)

110818, ¶ 42, 974 N.E.2d 914. Normally, the open and obvious doctrine applies to conditions

like fire or bodies of water; however, it can extend to other conditions such as sidewalk defects.

Burns v. City of Chicago, 2016 IL App (1st) 151925, ¶ 45, 59 N.E.3d 846.

¶ 52           The two exceptions to the open and obvious doctrine are (1) the distraction excep­



                                                - 11 ­
tion and (2) the deliberate encounter exception. Sollami v. Eaton, 201 Ill. 2d 1, 15, 772 N.E.2d

215, 223 (2002). The distraction exception applies when the possessor of land has reason to ex­

pect that his or her invitees or licenses may be distracted and will therefore fail to discover or

protect against the open and obvious danger. Id. (citing Restatement (Second) of Torts § 343A(1)

(1965)). This exception will apply only when evidence exists from which the court can infer that

the plaintiff was actually distracted. City of Centralia, 2014 IL 116998, ¶ 22.

¶ 53           The deliberate encounter exception applies when the possessor of land has reason

to expect that his or her invitee or licensee will proceed to encounter the known or obvious dan­

ger because a reasonable person in plaintiff’s position would do so. Sollami, 201 Ill. 2d at 15 (cit­

ing Restatement (Second) of Torts § 343A(1) cmt. f, at 220 (1965)). The deliberate encounter

exception is usually applied in cases involving some kind of economic compulsion. Id. at 16.

However, economic compulsion is not a per se requirement of the deliberate encounter excep­

tion. Id.; Morrissey v. Arlington Park Racecourse, LLC, 404 Ill. App. 3d 711, 725-26, 935

N.E.2d 644, 656 (2010).

¶ 54                   3. The Application of the Open and Obvious Doctrine

¶ 55           When a condition is open and obvious, the first duty factor weighs against impos­

ing a duty because courts assume that persons encountering potentially dangerous conditions will

appreciate and avoid the risk, making the likelihood of injury slight. City of Centralia, 2014 IL

116998, ¶ 35. Likewise, when a condition is open and obvious, the second factor weighs against

imposing a duty “because a defendant is ordinarily not required to foresee injury from a danger­

ous condition that is open and obvious.” Id.

¶ 56           Conversely, when an exception to the open and obvious doctrine applies, the out­

come of the duty analysis with respect to the first two factors is “reversed.” (Internal quotation



                                                - 12 ­
marks omitted.) Id. ¶ 20. The outcome is reversed because “where an invitee is likely either to

fail to apprehend the danger because he is distracted or to deliberately encounter the danger be­

cause of a lack of a better alternative, an injury is both likely and foreseeable.” Belluomini v.

Stratford Green Condominium Ass’n, 346 Ill. App. 3d 687, 692, 805 N.E.2d 701, 705 (2004)

(cited with approval in City of Centralia, 2014 IL 116998, ¶ 20). Accordingly, the first and se­

cond factors will weigh toward imposing a duty when an exception to the open and obvious doc­

trine applies.

¶ 57             The third and fourth factors take into account, as a matter of policy, the efficient

placement of the burden of avoiding the injury. Belluomini, 346 Ill. App. 3d at 692. The appro­

priate weight given to these four factors depends upon the unique circumstances of an individual

case. See Simpkins, 2012 IL 110662, ¶ 18.

¶ 58                                  4. The Standard of Review

¶ 59             When no dispute of material fact exists, whether a condition is open and obvious

is a question of law. Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14, 17, 938 N.E.2d 584,

587 (2010). Likewise, when there is no dispute of material fact, whether an exception to the open

and obvious doctrine applies is a question of law. Morrissey, 404 Ill. App. 3d at 728. Whether a

duty exists in a particular case is a question of law this court reviews de novo. Simpkins, 2012 IL

110662, ¶ 14.

¶ 60                                         C. This Case

¶ 61             In this case, plaintiff argues (1) a genuine issue of material fact remained as to

whether the unnatural accumulation of snow and ice was an open and obvious condition, (2) a

genuine issue of material fact existed as to whether the deliberate encounter exception to the

open and obvious rule applied, and (3) plaintiff is owed a duty as a matter of law under a tradi­



                                                 - 13 ­
tional duty analysis. We disagree.

¶ 62                        1. The Pile of Snow Was Open and Obvious

¶ 63            A condition on the property is “open and obvious” when a reasonable person in

the plaintiff’s position, exercising ordinary perception, intelligence, and judgment, would recog­

nize both the condition and the risk. Williams All Seasons Co., 2012 IL App (2d) 110818, ¶ 42.

When there is no dispute about the physical nature of the condition, whether a condition is open

and obvious is a question of law. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 34,

980 N.E.2d 58.

¶ 64            In this case, no one disputed the physical nature of the snow pile. Plaintiff testi­

fied that he slipped on a large pile of snow on the sidewalk. Plaintiff stated that he saw this pile

of snow but decided to walk on it anyway. He further stated that he knew he was walking upon

ice and snow.

¶ 65            Fordham, the maintenance technician, testified that Changing Seasons pushed a

“big pile” of snow onto the sidewalk. He stated the snow pile was so big and hard that his team

could not remove it with snowblowers. The owner of Changing Seasons admitted that his em­

ployee pushed a pile of snow onto the sidewalk. The Arbors’ property manager stated that she

later hired Changing Seasons to remove this pile of snow from the sidewalk. Accordingly, be­

cause there is no genuine issue of material fact, whether the snow pile was open and obvious is a

question of law. Id.

¶ 66            Given the above testimony, we conclude that the pile of snow was open and obvi­

ous as a matter of law. Plaintiff testified that his visibility was not obstructed on the day he fell.

He further stated that he was aware of the pile of snow. He also testified that as he was walking

on the pile of snow, he knew he was walking on snow and ice. A reasonable person in plaintiff’s



                                                 - 14 ­
position, exercising ordinary perception, intelligence, and judgment, would have noticed the

large pile of snow and realized the risk of walking upon it. See Sandoval v. City of Chicago, 357

Ill. App. 3d 1023, 1029, 830 N.E.2d 722, 728 (2005) (concluding that a reasonable person exer­

cising ordinary care would recognize and appreciate the risk in traversing a portion of the side­

walk that had a piece of concrete sticking upright approximately three to four inches in the air).

¶ 67                 2. The Deliberate Encounter Exception Does Not Apply

¶ 68           Plaintiff argues that a genuine issue of material fact existed as to whether the de­

liberate encounter exception applied. We disagree.

¶ 69           First, no issue of material fact is present. Plaintiff acknowledged that before the

accident occurred, he knew there were multiple ways to reach the laundry facility other than to

walk through the pile of snow. Even though plaintiff admitted those other paths were an “option”

for him to take, he chose to walk on the large pile of snow. Fordham also testified that there were

multiple paths to reach the laundry facility from plaintiff’s apartment building.

¶ 70           Second, the deliberate encounter exception does not apply as a matter of law to

these undisputed facts. The deliberate encounter exception applies when the possessor of land

has reason to expect that an invitee or licensee will proceed to encounter a known or obvious

danger because a reasonable person in plaintiff’s position would do so. Sollami, 201 Ill. 2d at 15.

¶ 71           Further, as we earlier noted, the deliberate encounter exception is usually applied

in cases involving some kind of economic compulsion. Id. at 16. For example, in Ralls v. Village

of Glendale Heights, 233 Ill. App. 3d 147, 150-51, 598 N.E.2d 337, 340-41 (1992), the plaintiff,

a foreman on a construction site, needed to reach the pipes in a partially constructed building.

The plaintiff had two options to reach the pipes: (1) a shorter but ice covered earthen incline or

(2) a perimeter path that was longer but presumably safer. Id. at 150. The foreman fell on the ice



                                               - 15 ­
covered earthen incline. See id. at 150-51. The trial court found that the landowner owed no duty

in part because the condition was open and obvious. Id. at 151. The Second District reversed,

finding that the deliberate encounter exception applied because it was reasonably foreseeable that

workers on the jobsite would use the incline because it was the shortest path. Id. at 151.

¶ 72           Likewise, in Morrissey, 404 Ill. App. 3d at 713, the plaintiff, a professional horse

trainer, had two options to reach the training track: (1) an eastern path that was shorter but was

often slippery or (2) a western path that was much longer but was presumably safer. While tak­

ing the eastern path, plaintiff was injured when his horse fell. Id. During discovery, individuals

disagreed on what path was reasonable to take. Id. at 719-22. Based upon this record, the First

District concluded that a genuine issue of material fact existed as to whether the defendant could

have anticipated that plaintiff would deliberately encounter this open and obvious condition. Id.

at 728.

¶ 73           Conversely, in Hastings v. Exline, 326 Ill. App. 3d 172, 173, 760 N.E.2d 993,

994-95 (2001), the plaintiff went to the defendant’s mobile home for a social visit. Plaintiff had

two ways to exit defendant’s mobile home: (1) the front door or (2) the back door. Id. The de­

fendant preferred that guests use the mobile home’s back door. Id. However, the defendant con­

ceded that the back door’s steps were dangerous. Id. The trial court granted defendant’s motion

for summary judgment. Id. This court affirmed, first concluding that the back door’s steps were

an open and obvious danger. Id. Further, we reasoned that the deliberate encounter exception did

not apply because the plaintiff failed to show that “a reasonable person in her position would

have found greater utility in choosing to use [defendant’s] back door than in using her front door,

given the respective conditions of these two exits.” Id. at 177.

¶ 74           The undisputed facts of this case show that plaintiff was walking on the sidewalk



                                               - 16 ­
to do his personal laundry at Arbors’ laundry facility. Plaintiff was not at his place of employ­

ment or facing any other type of economic compulsion. Plaintiff was aware of other reasonable

alternative routes to the laundry facility, but instead of choosing to take an alternative route, he

proceeded upon a path which had a large pile of snow. He then walked over this snow pile and

fell.

¶ 75              Similar to Hastings, we conclude plaintiff has failed to demonstrate that a reason­

able person in his position would have found greater utility in choosing to walk over the snow

pile instead of using one of the alternative paths. Id. Plaintiff failed to demonstrate that the alter­

native paths were covered in snow or were otherwise dangerous. See id. (“Theoretically, the case

might be different had Hastings provided evidence that the front exit presented an equal (or

worse) peril.”).

¶ 76              Moreover, unlike Morrissey, the alternative paths to the laundry facility were only

a minor inconvenience. See Morrissey, 404 Ill. App. 3d at 713. Likewise, time was not “of the

essence” for plaintiff to do his personal laundry. See id. at 728. Further, although plaintiff was

using the shortest path, plaintiff was not under any threat of economic compulsion. Compare

Hastings, 326 Ill. App. 3d at 177 (defendant was entitled to summary judgment when plaintiff

injured when walking on stairs with an open and obvious defect during a social visit when the

house had another exit that was not alleged to be defective), with Ralls, 233 Ill. App. 3d at 151

(deliberate encounter exception applied to plaintiff’s fall while walking on an incline because it

was reasonably foreseeable that workers on the jobsite would use the incline because it was the

shortest path).

¶ 77                               3. The Traditional Duty Factors

¶ 78              Plaintiff argues that even if the condition was open and obvious and no exception



                                                 - 17 ­
applies, he was still owed a duty under a traditional duty analysis. We disagree.

¶ 79            A duty may still exist even if a condition is open and obvious. City of Centralia,

2014 IL 116998, ¶ 34. A court determines the existence of duty primarily by considering the four

traditional duty factors of (1) the likelihood of injury, (2) the reasonable foreseeability of injury,

(3) the magnitude of the burden of guarding against the injury, and (4) the consequences of plac­

ing that burden on the defendant. Id.

¶ 80           On the facts of this case, the first factor weighs against imposing a duty because

courts assume that persons encountering an open and obvious condition will appreciate and

avoid the risk. Id. ¶ 35. To that point, plaintiff stated that he saw the large pile of snow and was

aware of multiple ways to reach the laundry facility. Plaintiff could have avoided his injury by

taking a readily available alternative path, which would have taken little effort. The second factor

also weighs against imposing a duty because a defendant is ordinarily not required to foresee in­

jury from an open and obvious condition. Id. The third and fourth factors also weigh against im­

posing a duty. Belluomini, 346 Ill. App. 3d at 692, 696; see City of Centralia, 2014 IL 116998,

¶ 36. Therefore, under the four traditional duty factors, defendants did not owe a duty to plaintiff.

¶ 81                                     III. CONCLUSION

¶ 82            For the reasons stated, we affirm the trial court’s order.

¶ 83           Affirmed.




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