                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                      Waters v. City of Chicago, 2012 IL App (1st) 100759




Appellate Court            NORMA WATERS, Plaintiff-Appellant, v. THE CITY OF CHICAGO,
Caption                    a Municipal Corporation, Defendant-Appellee.



District & No.             First District, Sixth Division
                           Docket No. 1-10-0759


Filed                      March 2, 2012
Rehearing denied           April 9, 2012
Held                       Summary judgment for defendant city was reversed in an action for the
(Note: This syllabus       injuries suffered by plaintiff when she tripped over the base of a street
constitutes no part of     barricade when she was startled by the noise of a jackhammer from a
the opinion of the court   nearby construction site, notwithstanding the city’s contention that the
but has been prepared      barricades were an open and obvious condition and that the distraction
by the Reporter of         exception did not apply, since the city could have rerouted pedestrian
Decisions for the          traffic or provided an alternative walkway, the burden would have been
convenience of the         minimal and the grant of summary judgment was improper where the city
reader.)
                           owed a duty of care to plaintiff under the circumstances.

Decision Under             Appeal from the Circuit Court of Cook County, No. 06-L-7932; the Hon.
Review                     Eileen M. Brewer, Judge, presiding.


Judgment                   Reversed and remanded.
Counsel on                  Francis Patrick Murphy, of Corboy & Demetrio, P.C., of Chicago, for
Appeal                      appellant.

                            Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth
                            Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant
                            Corporation Counsel, of counsel), for appellee.


Panel                       PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
                            with opinion.
                            Justice Palmer* concurred in the judgment and opinion.
                            Justice Garcia dissented, with opinion.



                                              OPINION

¶1          Plaintiff Norma Waters appeals from the circuit court’s grant of summary judgment to
        defendant City of Chicago (City) in her personal injury suit charging the City with negligence
        in maintaining a street barricade over a sidewalk. The plaintiff was injured when she tripped
        over the metal base of a street barricade upon being startled by the sudden noise of a
        jackhammer from a nearby construction site. The plaintiff contends the circuit court erred in
        granting summary judgment because two questions of fact remain: (1) whether the barricade
        she tripped over was an open and obvious condition, and (2) whether the defendant owed the
        plaintiff a duty of care under the distraction exception. We reverse.

¶2                                        BACKGROUND
¶3           The following facts were presented to the circuit court in pleadings, affidavits,
        photographs, admissions on file, a map, and in plaintiff’s deposition. On August 22, 2005,
        the 72-year-old plaintiff was injured in a fall at the intersection of Milwaukee and Higgins
        Avenues in Chicago. Earlier, the plaintiff had walked on a sidewalk northwest along the east
        side of Milwaukee Avenue from her home at 4663 North Milwaukee Avenue. She eventually
        crossed to the west side of Milwaukee to stop at her bank and then at a McDonald’s. She
        then began her return trip, walking in a southern direction on the sidewalk on the west side
        of Milwaukee back to Higgins Ave.
¶4           At the intersection of Milwaukee and Higgins, the plaintiff came upon street barricades
        at the crosswalk. The barricades had “metal barriers” at the bottom, which served as legs for
        the barricade structure. The metal base was “sticking out in the crossway.” The plaintiff


                *
                 Justice Cahill served on the panel at the time of oral arguments. Justice Palmer replaced
        Justice Cahill following Justice Cahill’s death on December 4, 2011.

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     stepped over two of the metal bases. At her deposition, she testified: “[A]s I was starting over
     the third barrier, I heard a huge bang. And I turned my head just that second and down I
     went. I was so distracted. It was so noisy.” After falling, the plaintiff saw that the source of
     the noise was a jackhammer being operated by a construction worker about 12 to 15 feet
     away from her. The plaintiff sustained an injury to her wrist in the fall, which required
     surgery.
¶5       The circuit court granted the City’s motion for summary judgment. The court ruled that
     the condition of the barricades was open and obvious and that the distraction exception did
     not apply to impose a duty of care on the City.

¶6                                          ANALYSIS
¶7        Summary judgment is only appropriate when the pleadings, depositions, admissions, and
     affidavits on file, viewed in the light most favorable to the nonmovant, show that no genuine
     issue of material fact exists and that the moving party is entitled to judgment as a matter of
     law. 735 ILCS 5/2-1005(c) (West 2004); Sollami v. Eaton, 201 Ill. 2d 1, 6 (2002); Clifford
     v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 39-40 (2004). Summary judgment
     is a drastic means of disposing of litigation and should only be allowed when the right of the
     moving party to judgment is clear and free from doubt. Sandoval v. City of Chicago, 357 Ill.
     App. 3d 1023, 1027 (2005). If reasonable people can draw different inferences from
     undisputed facts, then summary judgment is inappropriate. Williams v. Manchester, 228 Ill.
     2d 404, 417 (2008). The court should construe the evidence strictly against the movant and
     liberally in favor of the opponent. Williams, 228 Ill. 2d at 417.
¶8        On a motion for summary judgment, the trial court has “a duty to construe the record
     strictly against the movant and liberally in favor of the nonmoving party.” Jackson v. TLC
     Associates, Inc., 185 Ill. 2d 418, 423-24 (1998). As a result, summary judgment is not
     appropriate: (1) if “there is a dispute as to a material fact” (Jackson, 185 Ill. 2d at 424); (2)
     if “reasonable persons could draw divergent inferences from undisputed material facts”
     (Jackson, 185 Ill. 2d at 424); or (3) if “reasonable persons could differ on the weight to be
     given the relevant factors” of a legal standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247,
     269 (2007)). We review a grant of summary judgment de novo. Golden Rule Insurance Co.
     v. Schwartz, 203 Ill. 2d 456 (2003); Pritza v. Village of Lansing, 405 Ill. App. 3d 634, 641
     (2010). De novo consideration means we perform the same analysis that a trial judge would
     perform and give no deference to the judge’s conclusions or specific rationale. Khan v. BDO
     Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶9        The sole issue in this case is whether the defendant had a duty to use due care. Our
     analysis begins with a review of sections 343 and 343A of the Restatement (Second) of
     Torts, which has been adopted by Illinois and is part of the analysis of a “fall down” accident.
     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 invitees, and

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                (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 danger.” Restatement
           (Second) of Torts § 343 (1965).
¶ 10       Section 343 should be read together with section 343A (Restatement (Second) of Torts
       § 343 cmt. a (1965)), which provides the following “known or obvious” exception to the
       liability of a possessor of land under section 343:
           “A possessor of land is not liable to his invitees for physical harm caused to them by any
           activity or condition on the land whose danger is known or obvious to them, unless the
           possessor should anticipate the harm despite such knowledge or obviousness.”
           Restatement (Second) of Torts § 343A (1965).
¶ 11       The plaintiff argues that the circuit court erred in its grant of summary judgment because
       whether the condition was open and obvious and whether a distraction exception applies are
       both questions of fact for a trier of fact to answer. To support the assertion as to the open and
       obvious issue, the plaintiff offers the following quote. “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 v. K mart
       Corp., 136 Ill. 2d 132, 156 (1990). In her main brief, the plaintiff asserts, “The determination
       of whether a condition is open and obvious does not submit itself to summary judgment.” As
       to the application of the distraction exception, the plaintiff asserts, “There is no dispute that
       Ms. Waters says she was distracted. Whether her distraction is credible or sufficient to meet
       the distraction exception is a question for the trier of fact.”
¶ 12       The City replies, in pertinent part, that it had no duty to plaintiff because the barricades
       were an open and obvious condition and further claims that the distraction exception is not
       applicable here and cannot cause a duty. The essential elements of a cause of action in a “fall
       down” accident based on common law negligence are the existence of a duty and an injury
       proximately caused by that breach. Ward, 136 Ill. 2d at 140; Clifford, 353 Ill. App. 3d at 37.
       Generally, a duty of care arises where the parties stand in such a relationship to one another
       that the law imposes upon the defendant an obligation of reasonable conduct for the benefit
       of the plaintiff. Ward, 136 Ill. 2d at 140. Whether a defendant owes a plaintiff a duty of care
       is usually a question of law to be decided by the court. Ward, 136 Ill. 2d at 140. In making
       this determination, the court is to consider the following factors: (1) the foreseeability of the
       injury; (2) the likelihood of the injury; (3) the magnitude of the burden on the defendant of
       guarding against the injury; and (4) the consequences of placing the burden on the defendant.
       Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 438 (1990). Where no duty
       exists, the plaintiff cannot recover. Schoenbeck v. Du Page Water Comm’n, 240 Ill. App. 3d
       1045, 1048 (1993). Our supreme court has held that once a court finds that a danger is open
       and obvious, the court’s analysis is not “complete” until it has analyzed these four
       “traditional factors.” Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 425 (1998).
¶ 13       It is axiomatic that no legal duty arises unless the harm is reasonably foreseeable. See
       Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 354-55 (1977). Where as here a plaintiff
       alleges that she was injured by a condition on a defendant’s property, we decide the


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       foreseeability prong of the Illinois common law duty test by references to sections 343 and
       343A of the Restatement. Lafever v. Kemlite Co., 185 Ill. 2d 380, 389 (1998); Dreibert, 141
       Ill. 2d at 438.
¶ 14        As our Illinois Supreme Court has held, “persons who own, occupy, or control and
       maintain land are not ordinarily required to foresee and protect against injuries from
       potentially dangerous conditions that are open and obvious.” Bucheleres v. Chicago Park
       District, 171 Ill. 2d 435, 447-48 (1996). One of the exceptions to this general rule is the
       “distraction exception” illustrated in comment f to section 343A, which states:
            “There are, however, cases in which the possessor of land can and should anticipate that
            the dangerous conditions will cause physical harm to the invitee notwithstanding its
            known or obvious danger. In such cases the possessor is not relieved of the duty of
            reasonable care which he owes to the invitee for his protection. This duty may require
            him to warn the invitee or to take other reasonable steps to protect him, against the
            known or obvious condition or activity, if the possessor has reason to expect that the
            invitee will nevertheless suffer physical harm.
                Such reason to expect harm to the visitor from known or obvious dangers may arise,
            for example, where the possessor has reason to expect that the invitee’s attention may be
            distracted, so that he will not discover what is obvious, or will forget what he has
            discovered, or fail to protect himself against it. Such reason may also arise where the
            possessor has reason to expect that the invitee will proceed to encounter the known or
            obvious danger because to a reasonable man in his position the advantages of doing so
            would outweigh the apparent risk. In such cases the fact that the danger is known, or
            obvious, is important in determining whether the invitee is to be charged with
            contributory negligence or assumption of risk. (See §§ 466 and 469D.) It is not, however,
            conclusive in determining the duty of the possessor, or whether he has acted reasonably
            under the circumstances.” Restatement (Second) of Torts § 343A cmt. f (1965).
¶ 15        The distraction exception involves a situation where a possessor of land should anticipate
       the harm because it has reason to expect that the invitee’s attention may be distracted, so that
       the invitee would not discover the condition despite its obviousness or will forget what he
       has discovered and fail to protect against it. Deibert, 141 Ill. 2d at 437, 439-40 (citing
       Restatement (Second) of Torts § 343A cmt. f (1965)); Ward, 136 Ill. 2d at 153-55. Thus, the
       distraction exception generally involves a situation where the injured party was distracted
       from the open and obvious condition because circumstances required him or her to focus on
       some other condition or hazard. True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676,
       680 (2000).
¶ 16        We find plaintiff’s argument that the question of whether the barricades were open and
       obvious is a question of fact for the trier of fact not persuasive. We further find that
       plaintiff’s argument that whether the distraction exception is applicable is also a question of
       fact to be decided by the trier of fact not persuasive. However, we agree with plaintiff that
       the court’s grant of summary judgment here is improper.
¶ 17        Based on plaintiff’s deposition testimony, the barricades and their bases were not
       concealed or hidden in any way. Plaintiff was carefully walking and had walked past a


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       barricade when the sound of the jackhammer distracted her causing her to trip over the base
       of the third barricade. The barricade and its base fell within the definition of “obvious” as
       set forth in comment b to section 343A of the Restatement. Our conclusion here does not
       mean that all barricades and their bases on construction sites are obvious as a matter of law.
¶ 18        However, despite the obviousness of the barricade and its base, plaintiff became
       distracted upon hearing the loud noise from the jackhammer. Defendant created the hazard
       but not the distraction. It is reasonable to expect that a defendant who places a barricade over
       a sidewalk and places a portion of their bases in an area of ingress and egress on a public
       sidewalk without signs warning people to avoid walking in the area could foresee that people
       could reasonably become injured and would likely become injured if they used the walkway.
       It can also be reasonably expected that people would walk on the sidewalk notwithstanding
       its partial barricade. For these reasons, we cannot say, as a matter of law, that defendant
       should not have reasonably anticipated the distraction and should not have foreseen the
       injury to plaintiff. It would have been easy for the defendant to have barricaded the entire
       walkway so that no one could use it until the construction was complete and the
       consequences of doing so would not have placed any great burden on the defendant. The
       defendant City is shielded from liability for failing to erect barricades or provide warnings.
       Prostran v. City of Chicago, 349 Ill. App. 3d 81 (2004). However, once the City places
       barricades, it is not shielded from liability when barricades are placed negligently. 745 ILCS
       10/3-104 (West 2004) (stating that public entities are not liable for injuries caused by “the
       failure to initially provide” warnings, signals, or barricades (emphasis added)). See also
       Santelli v. City of Chicago, 222 Ill. App. 3d 862, 868 (1991) (holding that the plaintiff could
       allege a cause of action for negligence against the City for failing to remove an unreasonably
       dangerous median barrier). Santelli distinguishes between a municipality failing to undertake
       an action and undertaking an action and negligently creating a dangerous situation. Santelli,
       222 Ill. App. 3d at 867. Furthermore, the City could have rerouted pedestrian traffic or
       provided an alternative walkway. The burden would have been minimal.
¶ 19        We find that defendant owed plaintiff a duty of care under the circumstances presented
       here and the grant of summary judgment is improper.
¶ 20        Whether defendant breached its duty is a question of fact for the trier of fact. Deibert, 141
       Ill. 2d at 435. It is for the trier of fact to decide whether defendant failed to exercise
       reasonable care in protecting plaintiff from injury and whether such failure was the
       proximate cause of plaintiff’s injury. “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.
       Therefore, even though a possessor of land may have a duty to an invitee, the possessor may
       not be liable to the invitee if the trier of fact finds that the possessor exercised minimal care.
¶ 21        Three supreme court cases are instructive on this subject matter. In Deibert, a
       subcontractor’s employee was injured when he stepped in a tire rut after exiting a portable
       bathroom. Deibert, 141 Ill. 2d at 432-33. The ruts were open and obvious. Deibert, 141 Ill.
       2d at 434. However, the employee’s attention was distracted; when he came out of the
       bathroom, he looked up because workers had, in the past, thrown plasterboard and other
       construction materials off the nearby balcony. Deibert, 141 Ill. 2d at 433. The supreme court

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       concluded that the injury in Deibert was foreseeable. Deibert, 141 Ill. 2d at 438. In reaching
       that conclusion, the court noted that it was reasonable to expect that the general contractor
       was aware of workers throwing debris off the balcony; that it was aware of the presence of
       ruts on construction sites generally and the presence of ruts on that construction site in
       particular; and that it was aware of where the portable bathrooms on the site were located and
       that people would frequently walk in the area around the bathrooms. Deibert, 141 Ill. 2d at
       439. The court further noted that the general contractor was responsible for the condition (the
       workers discarding debris off the balcony) that caused plaintiff’s distraction. Deibert, 141
       Ill. 2d at 439.
¶ 22        In Ward, a customer was injured when he walked into a five-foot-tall concrete post
       located just outside the exit of a home center section of a K mart store. Ward, 136 Ill. 2d at
       135-36. At the time of the injury, the customer was carrying in front of him a large mirror
       that he had just purchased from the store. Ward, 136 Ill. 2d at 135. The supreme court held
       that the injury was reasonably foreseeable because the store invited its customers to use the
       door near which the plaintiff was injured; the store had reason to anticipate that customers
       would, even in the exercise of reasonable care, momentarily forget the presence of the posts
       which they may have previously encountered by entering through the customer entrance
       door; and it was also reasonably foreseeable that a customer carrying a large item just
       purchased in the store might be distracted and fail to see the post upon exiting through the
       door. Ward, 136 Ill. 2d at 153-54. Thus, Ward imposed a duty of care on the store even
       where a customer created his own distraction.
¶ 23        In Rexroad, a high school student was injured when he fell in an area under excavation
       in a parking lot located adjacent to a high school football field. Rexroad v. City of
       Springfield, 207 Ill. 2d 33, 36 (2003). The hole was previously barricaded by the city
       workers; however, the barricades were not in place at the time of the student’s injury.
       Rexroad, 207 Ill. 2d at 37. The student had noticed the hole in the parking lot earlier that day.
       Rexroad, 207 Ill. 2d at 37. At the time of the injury, the student was returning to the football
       field after taking a helmet from the locker room for one of the players. Rexroad, 207 Ill. 2d
       at 37. He was distracted because he was “focusing his attention on the player who needed the
       helmet.” Rexroad, 207 Ill. 2d at 37. The supreme court found that case to be similar to Ward
       and held that it was reasonably foreseeable that students may fail to avoid the risk posed by
       the hole by becoming distracted or momentarily forgetful. Rexroad, 207 Ill. 2d at 46.
       Rexroad thus imposed liability on the city despite the fact that the city did not create the
       distraction.
¶ 24        The dissent and the trial court relied on Prostran v. City of Chicago. In Prostran, a
       visually handicapped person walked on an area that was a dug-up section of where a
       sidewalk had been located. She was unable to clearly observe the terrain ahead of her but
       continued to walk in the area until she tripped on piles of accumulated dirt and rocks. We
       rejected plaintiff’s claim that the distraction exception applied because there was no evidence
       of a distraction. Prostran, 349 Ill. App. 3d at 88-89. Here a jackhammer’s noise caused
       plaintiff to trip on the base of a barricade and this type of distraction was foreseeable at a
       construction site, as is the fact that a user of the sidewalk could trip and fall.


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¶ 25                                     CONCLUSION
¶ 26       The plaintiff’s deposition indicates that she fell over the base of a barricade that was
       located on a sidewalk in a construction area after being distracted by the noise from a
       jackhammer. We find that the City had a duty to exercise due care and we reverse the grant
       of summary judgment in favor of the City.

¶ 27       Reversed and remanded.

¶ 28        JUSTICE GARCIA, dissenting:
¶ 29        I cannot agree with the majority that the “distraction exception” applies in this case.
       Supra ¶ 18. In addition, I disagree with the majority’s decision because it would appear to
       require the City to take every case to judgment where the plaintiff in essence claims that a
       big-city-life noise, such as the sound of a jackhammer, triggers the distraction exception to
       an open and obvious danger.
¶ 30        The supreme court was very clear in its consideration of the open and obvious rule in
       Ward v. K mart Corp., 136 Ill. 2d 132 (1990). “The focus must be on defendant. A major
       concern is whether defendant could reasonably have foreseen injury to plaintiff.” (Emphasis
       in original.) Id. at 148. In Ward, the plaintiff won a jury verdict for injuries he sustained
       when he walked into a concrete post placed near the customer door as he exited the K mart
       store while carrying a vision-obscuring bundle. Id. at 138. The circuit court granted K mart
       judgment notwithstanding the jury’s verdict based on its lack of legal duty to protect the
       plaintiff against the risk of colliding with the post. Id. at 139 The appellate court affirmed in
       a majority decision. Id. at 139. At the conclusion of a lengthy opinion, the supreme court
       reinstated the jury’s verdict. Id. at 157.
¶ 31        The supreme court was circumspect in its decision: “We may well have arrived at a
       different conclusion if the post would have been located further away from the entrance of
       the building, or if the plaintiff would not have been carrying any vision-obscuring bundle.”
       Id. at 153. The duty imposed on the defendant arose from the risk that a customer may be
       “distracted or momentarily forgetful” of the presence of the posts located so close to the
       entrance of the store. Id. at 156. The plaintiff’s distraction stemmed from the very activity
       K mart desired–the plaintiff’s purchase of an item from its store. As the court cautioned, its
       decision might have been different had the plaintiff not been “carrying any vision-obscuring
       bundle.” Id. at 153. In that event, the condition of the existence of the posts might not be
       unreasonably dangerous as the supreme court explained: “[i]f people who are likely to
       encounter a condition may be expected to take perfectly good care of themselves without
       further precautions, then the condition is not unreasonably dangerous because the likelihood
       of harm is slight.” (Internal quotation marks omitted.) Id. at 148.
¶ 32        In the instant case, the plaintiff’s claim is that she heard the sound of the jackhammer in
       midstep, which caused her to turn her head and misjudge the placement of her elevated foot
       as she stepped over the legs of the barricade, which resulted in her fall. It is uncontested that
       the plaintiff always knew the barricades were present; in fact, she safely stepped over one.
       It is also certain the barricades were placed by the City to warn the plaintiff (and other

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       pedestrians) of the dangerous condition that was present. The presence of the barricades gave
       notice to the plaintiff that a dangerous condition existed to permit her to exercise reasonable
       care in light of the condition.
¶ 33       Given the clear warning provided by the barricades, I submit that under Ward the
       barricades were not unreasonably dangerous, a conclusion in line with this court’s decision
       in Prostran v. City of Chicago, 349 Ill. App. 3d 81 (2004), upon which the circuit court relied
       to grant summary judgment to the City. Keeping the focus on the defendant as directed by
       the Ward decision, the plaintiff fails to explain what “further precautions” the City could
       have taken to have addressed the risk posed by the condition she complains about. Nor does
       any case cited by the plaintiff support her contention that the “distraction exception” applies
       to the startling or alarming jackhammer noise that caused her to misdirect her vision.
¶ 34       In accord with Ward, the barricades here gave “adequate warning to [the plaintiff that]
       would suffice to render the condition ‘reasonably safe.’ ” Ward, 136 Ill. 2d at 141; see
       Rexroad v. City of Springfield, 207 Ill. 2d 33, 46 (2003) (“Defendants could have guarded
       against the injury [caused by an open and obvious condition] simply by leaving the
       barricades in place.”). Clearly, the City had no duty to “remove all dangers” from the
       sidewalk in order to avoid liability. Ward, 136 Ill. 2d at 142. This is true because “the
       obviousness of a condition is also relevant to the existence of a duty on the part of
       defendant.” Id. at 143. As the supreme court explained, “The crux of the issue *** is whether
       defendant’s general duty of reasonable care extended to the risk encountered by plaintiff.”
       Id. at 145.
¶ 35       It is at the crux of the issue of whether the defendant’s general duty of reasonable care
       extended to the risk encountered by plaintiff here that her case falls apart. The risk posed by
       the condition (presumably the presence of the barricades) under the City’s control remained
       the same with or without the startling noise of the jackhammer. The plaintiff successfully
       stepped over the legs of the first barricade. As she looked at the legs of the second barricade,
       the startling noise caused her to turn her head, misstep, and fall. As we noted in Prostran,
       the plaintiff could have chosen to walk around the legs of the barricade rather then step over
       them or she could have crossed the street to have avoided the barricades all together.
       Prostran, 349 Ill. App. 3d at 88. As our supreme court observed, it would be impossible for
       the City to render the streets “injury-proof.” Ward, 136 Ill. 2d at 156.
¶ 36       While the majority concludes that under its duty analysis the burden upon the City to
       extend the City’s general duty of reasonable care to the risk of the plaintiff turning her head
       in midstep because she heard the sound of a jackhammer “would have been minimal” (supra
       ¶ 18), I conclude that the action the City took was all the law required–it posted the barricade
       to give notice of an open and obvious danger. Indeed, it is ironic that the very act of giving
       notice of an open and obvious danger now serves, under the majority’s view, as the basis to
       expose the City to possible liability for its claimed negligence.
¶ 37       Accepting the majority’s position that the condition encountered by the plaintiff was
       unreasonably dangerous, I submit that the “distraction exception” to impose possible liability
       on the City for the plaintiff’s injuries did not arise from that which the City did not
       control–an alarming noise (from who knows where) that unquestionably caused the plaintiff


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       to misstep as she traversed the legs of the second barricade. Unlike the majority, I find it to
       be no “minimal” burden to require the City to have anticipated the plaintiff’s misstep caused
       by a startling noise from some unknown source, which would force the City to take
       additional precautions beyond the placement of the barricades themselves.
¶ 38       In sum, I agree with the City that the distraction exception under Ward does not apply in
       this case; in line with our decision in Prostran, I would affirm summary judgment for the
       City. Accordingly, I dissent.




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