                                No. 2-09-0347   Filed: 5-27-10
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

DAVID W. WILFONG,                         ) Appeal from the Circuit Court
                                          ) of Kendall County.
       Plaintiff-Appellant,               )
                                          )
v.                                        ) No. 06--L--15
                                          )
L.J. DODD CONSTRUCTION and                )
G. PORTER AND COMPANY,                    )
                                          )
       Defendants-Appellees               )
                                          )
(Kluber, Skahan and Associates, Inc., and ) Honorable
Kocurek Concrete Contractors, Inc.,       ) Thomas E. Mueller,
Defendants).                              ) Judge, Presiding.
_____________________________________________________________________________

       JUSTICE BOWMAN delivered the opinion of the court:

       Plaintiff, David W. Wilfong, was injured when he fell while walking across ruts at a

construction site. He appeals from the trial court's grant of summary judgment in favor of

defendants, L.J. Dodd Construction (Dodd) and G. Porter & Company (Porter). Plaintiff argues that:

(1) the trial court erred in ruling that the ruts were open and obvious; (2) the trial court erred in

determining that the "distraction exception" did not apply; (3) the trial court erred in ruling that the

distraction was not reasonably foreseeable by defendants; (4) even if the ruts were open and obvious,

defendants owed him a duty to maintain a safe jobsite pursuant to their contracts with the landowner;

and (5) the trial court did not give proper weight to an expert's statement attached to plaintiff's

motion to reconsider. We affirm.
No. 2--09--0347


                                        I. BACKGROUND

       In November 2004, plaintiff was a project manager for Jones & Brown Company and was

assigned to the Churchill Elementary School project in Oswego. Jones & Brown was a steel

fabricator hired by the project owner, Oswego Unit School District 308 (OSD 308). OSD 308 hired

defendant Dodd as the general contractor and defendant Porter as a masonry subcontractor. Kluber,

Skahan & Associates, Inc. (Kluber, Skahan), was the architectural firm for the project, and Kocurek

Concrete Contractors, Inc. (Kocurek Concrete), was hired by OSD 308 to pour concrete.

       The following facts come from excerpts of depositions contained in the record. At the time

in question, the construction site consisted primarily of the school building under construction and

Dodd's job trailer, which was in a paved parking lot about 75 yards west of the school. Much of the

site was very muddy and filled with ruts. About 20 to 30 feet or 60 to 70 feet from the job trailer was

a gravel path that led from the parking lot to the east entrance of the school. Michael Barr, OSD

308's construction supervisor, testified that Dodd had the path installed after he requested a "smooth

walking path" to provide "clear access to the building." The path satisfied his concerns regarding

ground conditions, and he did not think that anything else needed to be done to address the ground

conditions. When asked if there was a designated walkway, Barr replied in the negative and said that

there were "several points of access to the building." On several occasions he had chosen to walk

across the ruts rather than take the gravel path. The number and size of ruts shown in plaintiff's

photographs did not look different from other construction sites at that time of year. Barr further

testified that Jones & Brown and Porter were hired directly by OSD 308.

       Plaintiff testified in his deposition as follows. On November 18, 2004, he was participating

in a progress meeting in the job trailer. Plaintiff had been to the jobsite about two to three times a



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week for the previous two months to inspect progress. About 20 minutes into the meeting, Neal

Dodd (Neal) was concerned whether Jones & Brown had enough "sure connectors" delivered to the

site. Sure connectors are welded through decking to allow poured concrete to maintain its structural

integrity. Plaintiff called his office, and the person in charge of shipping, Mike Milligan, told

plaintiff that they had been delivered and told him the quantity. Neal said that the quantity was

insufficient. Plaintiff asked Milligan to check again, and Milligan said that he would. Plaintiff

decided to leave the trailer to do a physical count. The discussion in the trailer had been heated, and

plaintiff was upset with Milligan for not verifying the number of connectors before plaintiff left the

trailer. Plaintiff did not know where the connectors were but "[c]ommon sense *** told [him] that

the sure connecters [sic] were inside the building and were protected" from the elements because

they came in cardboard boxes. "That's the first thing [he] thought about."

       Plaintiff left the trailer at about 9:30 or 10 a.m., and walked over the parking lot, down a

grassy area, and down a "drive" that was bare ground with rough terrain but was an access way for

vehicles to get to the building. Plaintiff testified that he had to walk in a rut that a truck had made

in the drive and that "[f]rom that point on it was at your discretion which way you went. There was

no designated path to the job." Plaintiff explained that the rut in which he was walking in the drive

did not lead to the building, so he had to keep stepping in and out of different ruts to make his way

to the building. He was walking in a normal manner and was not in a hurry.

       The ruts plaintiff was walking in were consistent with the tires of the lulls that bricklayers

use to carry bricks. The width and shape of the tire tracks, along with plaintiff's experience, allowed

him to identify the source of the tracks as a lull. Porter used lulls on this site. The ruts were

generally about 8 to 10 inches deep. He could not walk on the "tops" of the ruts, meaning ground



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level, because they were unstable; it was like walking on a peak. The ruts themselves went down

from ground level. The ruts were a "little hard" because the sun had not come out yet to "soften stuff

up." Low areas of the site were damp and muddy, but the inside of the ruts was "firm." He believed

that he must have been sidestepping from one rut to the next, because he could not cross over and

put two feet in the same rut. When plaintiff was stepping from one rut into the bottom of another

rut, the "side of the rut *** gave way" and he lost his balance and turned his right ankle. Just before

he fell, he was looking at the ruts and trying to determine his next step.

       A few seconds before he fell, Milligan called plaintiff on his cell phone and told him that the

quantity of connectors Neal had claimed should be on the site was correct. Plaintiff was on the

phone when he fell. Plaintiff was about 25 to 30 yards away from the building and 35 to 40 yards

away from the trailer. He was wearing high-top boots with steel toes.

       For two or three weeks before the accident, plaintiff had complained about the site's condition

because trucks could not get close enough to the building to make proper deliveries. Plaintiff said

that the site needed to be scraped because the trucks "needed a level laid out surface to bring our

material onto the worksite." Deliveries had to be made about 100 or 150 yards from the building,

which was not the usual case for construction sites. Plaintiff believed that leveling ruts was the

responsibility of the general contractor, construction manager, or whoever was in charge of safety.

       Plaintiff had worked in construction for over 20 years and had 40 hours of a safety training

course. The instruction included keeping an eye on the site's ground to watch where you are

walking. Plaintiff was familiar with ruts on jobsites and with muddy and rainy conditions, and he

was familiar with how to avoid ruts while walking on jobsites. However, this jobsite was




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No. 2--09--0347


substandard regarding the number, length, and depth of the ruts. As a result of his fall, plaintiff

fractured his ankle.

        Melvin Greathouse testified that he was the general foreman for DTI, which Jones & Brown

had hired as a steel erector. At one of the first progress meetings he was involved in, he told Neal

that as the general contractor, Dodd was obligated to provide access with a good road and a level dry

area to put the steel down. Greathouse believed that the site's condition was even worse than

depicted in plaintiff's photos, and he repeatedly complained about conditions. His workers also

complained about the muddy conditions when walking to the building site, because "[b]y the time

you would get there *** you would have mud *** halfway up your thighs." In his 40 years as an

ironworker, Greathouse had been to about 4,500 jobsites. He had been to a few sites with ruts

similar to the Churchill School project, but those had been shut down to fix the ruts, whereas Dodd

made little to no attempt to fix these ruts. There was one day Greathouse called off his workers due

to site conditions.

        Ronald Tucek ran Kocurek Concrete. He testified that they were scheduled to pour concrete

on November 17 but had to postpone until the 22nd due to rain. Tucek described the conditions as

those of a "normal jobsite," though he also said that it was "pretty muddy" and he was "surprised that

they were working in this kind of mud and that the lulls made it through." Ruts such as those

depicted in plaintiff's photos were common on construction sites. The only way to avoid ruts was

to put down stone, but it was highly doubtful that any construction contractor would do that because

of the expense and the impracticality. Tucek explained that the contractor would then have to

remove all of the stone to plant grass. On some projects, his company had been hired to grade out

ruts similar to the ruts on this site. However, he had never seen grading done on a daily or weekly



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No. 2--09--0347


basis. Usually, it would be done before a freeze, again in spring after the freeze/thaw cycles, and

toward the end of the job. It was a "never-ending battle for ruts" and there was no way for a

contractor to avoid them, because anything with rubber tires, especially lulls, would rip up the

ground from November until April.

       Michael Kjellesvik, the plumber foreman of C.R. Leonard Plumbing & Heating, testified that

he and his crew did not have any problems accessing the building due to ground conditions. At one

point, "they made us [a] stone sidewalk." The sidewalk was installed because of the mud outside

and mud being tracked into the building. It was shown in one of plaintiff's pictures as a muddy

gravel path. It went from the parking lot to the building. When Kjellesvik parked near the trailer,

he would take the gravel path to the building. The number and size of the ruts shown in plaintiff's

photographs were typical for a construction site at that time of year.

       John Kennelly, Porter's superintendent, testified that the quantity and size of the ruts shown

in plaintiff's photographs looked typical for that stage of the work at that time of year. Edward

Mucha, Porter's foreman, similarly testified that the number and size of the ruts depicted in the

photographs were typical for that time of year, and he described the site as "in fairly decent shape."

Mucha also testified that there was a "stone road" that went from the parking lot "right to the

building," which was used to make deliveries to the building.

       Steve Freeman of S&K Excavating testified that S&K was on-site at the beginning of the

project and at the end to level the ground. Looking at photographs of the site, Freeman stated that

it would probably "not do much good" to scrape the site in that condition because it was pretty

muddy; his machine probably would not be able to get around in the mud and would be making its

own ruts. The ground would first have to "freeze up a little bit." If he leveled out such a muddy site



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in the morning and machinery continued to be used on the site, the site probably would return to its

previous condition within a few hours. Freeman described pictures of the site as depicting a "typical

construction site" in terms of the ground condition and number of ruts. He had seen sites where

plywood was laid down for workers to have access to the site.

       Plaintiff filed his initial complaint on March 8, 2006. He filed an amended complaint on

June 19, 2006. Count I alleged negligence against Dodd. Plaintiff alleged that Dodd had a duty to

exercise reasonable care in the operation of the construction site, "including the provision of a safe,

suitable and proper ground condition" for him and other workers. Dodd allegedly breached this duty

by violating various sections of the Occupational Safety and Health Act (OSHA); failing to make

reasonable inspection of the premises and work; improperly managing and maintaining the premises;

failing to provide plaintiff with a safe place to work; failing to warn plaintiff of the dangerous

conditions; failing to provide adequate safeguards to prevent injury; failing to supervise the work;

and failing to maintain the ground of the construction site in a safe manner.

       Count II alleged negligence against Porter. Plaintiff alleged that Porter used heavy equipment

in the mixing and pouring of concrete and had the authority to order changes in the work that would

have prevented the "improperly graded area" caused by its machinery. Count II alleged the same

breaches of duty alleged in count I, with the exception of the failure to supervise.

       Count III alleged negligence against Kluber, Skahan, and count IV alleged negligence against

Kocurek Concrete. Plaintiff voluntarily dismissed these defendants on August 29, 2007.

       Dodd filed a motion for summary judgment on August 12, 2008, and Porter filed a motion

for summary judgment on September 25, 2008. The trial court granted the motions on January 9,

2009, finding as follows. Defendants generally had a duty to plaintiff to protect against the harm



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No. 2--09--0347


caused by the unreasonably dangerous condition created by ruts, mud, and water on the construction

site. However, an exception to such a duty exists when the danger is open and obvious. In this case,

the conditions were open and obvious, and plaintiff had worked in construction for over 20 years and

was familiar with the site's conditions. The "distraction exception" to the open-and-obvious doctrine

did not apply because defendants did not cause the distraction of plaintiff talking on his cell phone

while walking over the ruts and, further, because the distraction was not reasonably foreseeable by

defendants. The "deliberate encounter exception" to the open-and-obvious doctrine did not apply

because there was an alternative gravel path, which plaintiff admitted existed, and plaintiff chose not

to use the path but to instead tackle the ruts.

        Plaintiff filed a motion to reconsider on February 3, 2009. The trial court denied the motion

on March 13, 2009. Plaintiff timely appealed.

                                           II. ANALYSIS

        Summary judgment is appropriate only where the pleadings, depositions, admissions, and

affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there

is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of

law. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228 (2007). The purpose of summary

judgment is to determine whether a question of fact exists, not to make factual findings, and

summary judgment should be granted only where the movant's right to it is clear. Forsythe v. Clark

USA, Inc., 224 Ill. 2d 274, 280 (2007). We review de novo a grant of summary judgment. Weather-

Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009).

        Here, plaintiff alleged negligence against both defendants. The elements of a cause of action

for negligence are: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and



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(3) an injury proximately caused by the breach. Matthews v. Aganad, 394 Ill. App. 3d 591, 598

(2009). Plaintiff's arguments on appeal relate to the element of duty, and we discuss this area of law

in some detail before returning to plaintiff's specific arguments. Whether a duty exists is a question

of law to be determined by the court. Bonavia v. Rockford Flotilla 6-1, Inc., 348 Ill. App. 3d 286,

291 (2004). The four factors courts typically consider in determining whether a duty exists are: (1)

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

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

v. South Roxana Dad's Club, 381 Ill. App. 3d 665, 669 (2008).

        We consider the first prong of the duty test, foreseeability, by reference to section 343 of the

Restatement (Second) of Torts. LaFever v. Kemlite Co., 185 Ill. 2d 380, 389 (1998). Section 343

states in pertinent part:

                "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).

Comment d to section 343 provides that "[a]n invitee is entitled to expect that the possessor will take

reasonable care to ascertain" the premises' condition and, "having discovered it, either to make it




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reasonably safe by repair or give warning of the actual condition and risk involved therein."

Restatement (Second) of Torts §343, Comment d, at 217 (1965).

       However, an open and obvious condition is a recognized exception to the duty of care set

forth in section 343 of the Restatement. LaFever, 185 Ill. 2d at 390. Section 343A(1) of the

Restatement addresses this subject, stating in relevant part:

               "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(1) (1965).

See also Ward v. K mart Corp., 136 Ill. 2d 132, 150-51 (1990) (adopting section 343A). The term

"obvious" means that a reasonable person would recognize both the condition and the risk involved.

Green v. Jewel Food Stores, Inc., 343 Ill. App. 3d 830, 832 (2003). The determination of whether

a condition is open and obvious is an objective test rather than a subjective test. Buchaklian v. Lake

County Family Young Men's Christian Ass'n, 314 Ill. App. 3d 195, 203 (2000).

       Whether a condition is open and obvious plays a large role in whether a duty exists because

it relates to the issues of foreseeabilty and likelihood of injury. Belluomini v. Stratford Green

Condominium Ass'n, 346 Ill. App. 3d 687, 691-92 (2004). That is, it is not reasonably foreseeable

that someone will be injured by an open and obvious condition because it is assumed that people will

appreciate the risks of such a condition and exercise care for their own safety. Belluomini, 346 Ill.

App. 3d at 692. Similarly, the likelihood of injury from open and obvious conditions is considered

slight because the law assumes that individuals encountering such conditions will appreciate and

avoid the risks. Belluomini, 346 Ill. App. 3d at 692.



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       Plaintiff first argues that whether a condition is open and obvious is a question of fact. As

stated, whether a duty exists is a question of law, and this court has held that whether a condition is

open and obvious is also a question of law where there is no dispute about the physical nature of the

condition. Belluomini, 346 Ill. App. 3d at 692-93; see also Bucheleres v. Chicago Park District, 171

Ill. 2d 435, 455-56 (1996) (Lake Michigan presents an open and obvious risk to individuals diving

from concrete seawalls into the lake); Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430,

438 (1990) (tire rut outside of portable bathroom was an obvious condition). However, where there

is a dispute about the condition's physical nature, such as its visibility, the question of whether a

condition is open and obvious is factual. Belluomini, 346 Ill. App. 3d at 693; see also Simmons v.

American Drug Stores, Inc., 329 Ill. App. 3d 38, 44 (2002) (whether "cartnapper" barrier outside of

drug store presented an open and obvious danger was a factual question); Buchaklian, 314 Ill. App.

3d at 204 (whether defect in mat in locker room was open and obvious was a question of fact).

       Plaintiff further argues that the ruts were not open and obvious. Plaintiff argues that the

evidence clearly shows that the site was covered in ruts, mud, and standing water. Plaintiff argues

that many of the ruts were not visible and were covered with water. Plaintiff's argument is without

merit. While plaintiff's photographs show that some of the site, including some ruts, was covered

with water, plaintiff's testimony clearly shows that he was aware that he was walking over ruts,

stepping from one to another. He characterized the ground at the bottom of the ruts on which he was

placing his feet as "firm." He also testified that the ruts he was stepping into did not contain water:

"It was just dirt and mud." Plaintiff explained that "in the low areas [of the site] it was damp and

muddy. When you're in a rut it was firm."




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       Plaintiff relatedly argues that the risk that the particular rut he fell in would collapse could

not have been known by him or any other reasonable person. Plaintiff argues that some of the ruts

on the site were hardened and able to hold workers' weight, and he notes that Barr testified that he

had walked across the ruts on several occasions. As stated, whether something is obvious relates to

whether a reasonable person would recognize both the condition and the risk involved (Green, 343

Ill. App. 3d at 832), and with this argument plaintiff challenges the risk aspect. However, the

question is not whether one particular rut would collapse, but rather whether a reasonable person

would anticipate the danger of crossing over the ruts. Here, plaintiff testified that the ruts were 8 to

10 inches deep, the tops of the ruts were unstable, he was looking at the ruts to determine his next

step, and he was familiar with how to avoid ruts on a jobsite. A reasonable person in his position

would therefore realize that walking across the ruts on the site would present the danger of a rut

collapsing or of tripping or otherwise falling. Accordingly, we agree with the trial court that the ruts

were open and obvious as a matter of law.

       Even if a condition is open and obvious, the landowner may still be liable if he should

anticipate the harm despite the condition's obviousness. Restatement (Second) of Torts §343A(1)

(1965); Belluomini, 346 Ill. App. 3d at 691. Two such exceptions to the open-and-obvious doctrine

are the "distraction exception" and the "deliberate encounter exception." Bonavia, 348 Ill. App. 3d

at 292. The former exception refers to a situation where the landowner "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." Restatement (Second) of Torts

§343A(1), Comment f, at 220 (1965); see Ward, 136 Ill. 2d at 153-54 (it was reasonably foreseeable

that customers would become distracted while exiting store with large purchases and collide with



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post). The latter exception arises when the landowner "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." Restatement (Second) of Torts

§343A(1), Comment f, at 220 (1965); see LaFever, 185 Ill. 2d at 392 (it was reasonably foreseeable

that the plaintiff would walk on slippery fiberglass material while performing his employment

obligations).

       Plaintiff challenges the trial court's finding that the distraction exception does not apply

because he was distracted by his own action in electing to talk on his cell phone while trying to cross

the ruts. Plaintiff argues that the distraction exception applies because it is reasonably foreseeable

that a worker focusing on his duties, such as speaking on the phone to verify the location of a

delivery, could become distracted and not realize that the rut he was stepping on was not strong

enough to support him. Plaintiff further argues, in a somewhat contradictory manner, that "there is

absolutely no evidence that the use of the cellular telephone distracted him," because his testimony

shows that he was looking at the ground and contemplating his next step while he talked on the

phone. Plaintiff maintains that he never testified that he was distracted; "[t]hat was Defendants'

mischaracterization." Dodd argues that by admitting he was not distracted, plaintiff has thereby

conceded that the distraction exception to the open-and-obvious doctrine does not apply. We agree.

Cf. Reis v. Aetna Casualty & Surety Co. of Illinois, 69 Ill. App. 3d 777, 785 (1978) (insurance

company had duty to defend based on concession in its brief).

       In any event, plaintiff's argument is without merit. In general, "[i]n order for the distraction

to be foreseeable to the defendant so that the defendant can take reasonable steps to prevent injuries

to invitees, the distraction should not be solely within the plaintiff's own creation." Whittleman v.



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Olin Corp., 358 Ill. App. 3d 813, 817-18 (2005) (distraction exception did not apply for injuries the

plaintiff sustained from high-voltage lines, because the plaintiff alleged only that he was distracted

by his work and did not allege that the defendant did anything to cause the distraction or that the

layout of the site was distracting); see also Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1030-

31 (2005) (distraction exception inapplicable where a plaintiff is distracted by his or her own

independent acts for which the defendant has no direct responsibility). In this case, to any extent that

talking on the cell phone was a distraction to crossing the ruts, plaintiff created that distraction by

answering the phone and continuing to walk across the site while talking. Cases relied on by

plaintiff are distinguishable because there the defendant had created or contributed to the distraction.

See Rexroad v. City of Springfield, 207 Ill. 2d 33, 46 (2003) (the plaintiff student fell in a hole

because he was distracted by carrying a football helmet the coach of the defendant school had

ordered him to bring); Deibert, 141 Ill. 2d at 439 (the "[d]efendant also created the hazard which

caused the distraction"); Ward, 136 Ill. 2d at 153-54 (the defendant sold the plaintiff a large mirror

that obscured his view of a post outside the store).

       Plaintiff further relies on Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34,

45 (2004), where the court held that section 343A does not require proof that the possessor of the

land created or controlled the distraction. We agree that there is no single bright-line test for

foreseeability. However, the Clifford court also stated that "the distraction exception generally

involves a situation where the injured party was distracted from the open and obvious condition

because circumstances required him to focus on some other condition or hazard." Clifford, 353 Ill.

App. 3d at 43. The court held that the defendant general contractor should have reasonably foreseen

that the plaintiff carpenter, whose work on the project required him to look upward, would have his



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attention distracted and would fall into a nearby uncovered hole in the floor. Clifford, 353 Ill. App.

3d at 47. In the instant case, by contrast, circumstances did not require plaintiff to walk across the

ruts and talk on the phone at the same time. Thus, the trial court did not err in ruling that the

distraction exception was inapplicable.

        Plaintiff does not argue that the deliberate-encounter exception to the open-and-obvious

doctrine applies, thereby forfeiting the issue for review. See 210 Ill. 2d R. 341(h)(7) (points not

argued in the appellant's brief are forfeited).

        In the end, the open-and-obvious doctrine, along with its exceptions, is simply a means to

assist in analyzing the foreseeability and the likelihood of injury. To any extent that those factors

are present here, we conclude that the remaining factors in determining whether a duty exists,

namely, the magnitude of the burden of guarding against the injury and the consequences of placing

that burden on defendants, weigh against imposing a duty under the facts of this case. Although

individuals testified that they had seen similar ruts graded, the only depositions from people who had

personally been involved in grading ruts showed the impracticality of doing so here. Tucek testified

that grading was usually done just before a freeze, again in the spring, and toward the end of a job

and that he had never seen grading done on a daily or weekly basis. He testified that it was a "never-

ending battle for ruts" because anything with rubber tires, especially lulls, would rip up the ground

from November until April. According to Tucek, the only way to avoid ruts was to put down stone,

but no contractor would likely do that because it was expensive and the stone would later have to

be removed. Freeman testified that the site in the condition shown probably could not be graded,

because his machine would not be able to get around in the mud and it would be making its own ruts.




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He testified that if he had leveled it in that condition with heavy machinery still present, it probably

would return to its previous condition within a few hours.

          Further, as plaintiff acknowledges in his brief, the evidence showed that Dodd had a gravel

pathway installed. At oral argument, plaintiff argued that the pathway went just from a portable

toilet to the building, and not from the parking lot to the building. However, we find no support for

this assertion in the record. Indeed, Barr, Kjellesvik, and Mucha all testified that the path went from

the parking lot to the building. Plaintiff argues that there were several points of access to the

building, and there was "no evidence that workers were directed or required to use the gravel

pathway." Plaintiff also argues that defendants could have used plywood boards to cover the ruts.

However, considering the open-and-obvious nature of the ruts, the limited effectiveness of grading

a site at the time of year at issue, the cost of putting down gravel on the entire site, and the existence

of a gravel path leading from the parking lot to at least one building entrance, we conclude that

defendants did not have a duty to try to grade the site or create additional pathways with plywood

boards.

          Plaintiff next argues that even if the ruts were open and obvious, defendants owed him a duty

to maintain a safe jobsite pursuant to their contracts with OSD 308. Plaintiff notes that under their

respective contracts, defendants are both listed as contractors. Plaintiff relies on identical language

in the contracts stating that: (1) "If the Contract Documents give specific instructions concerning

construction means, methods, techniques, sequences, and procedures, the Contractor shall evaluate

the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the

jobsite safety of such means, methods, techniques, sequences, or procedures"; (2) "The Contractor

shall be responsible for initiating, maintaining and supervising all safety precautions and programs



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in connection with the performance of the Contract"; and (3) "The Contractor shall take reasonable

precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss

to employees on the Work [sic] and other persons who may be affected thereby."

        Dodd argues that plaintiff forfeited this argument by failing to raise it in the trial court.

However, plaintiff mentioned the contractual provisions in his response to Porter's motion for

summary judgment, in argument during the hearing on the summary judgment motions, and again

in his motion to reconsider. Accordingly, he has not forfeited the argument on appeal.

        Defendants further argue that the contracts did not create a duty toward plaintiff because he

was not a third-party beneficiary of the contracts. A strong presumption exists that contracting

parties intend that the contract's provisions apply to only them and not third parties. Martis v.

Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017, 1020 (2009). An individual who is not a

party to a contract may enforce the contract only where the contracting parties intentionally entered

into the contract for the individual's direct benefit. Martis, 388 Ill. App. 3d at 1020. Whether

someone is a third-party beneficiary depends on the contracting parties' intent, as shown by the

contract's language. Martis, 388 Ill. App. 3d at 1020. Even if the contracting parties know, expect,

or intend that others will benefit from their agreement, that alone is not sufficient to overcome the

presumption that the contract was intended only for the parties' direct benefit. Martis, 388 Ill. App.

3d at 1020. Rather, the contract's language must show that the contract was made for the direct

benefit of the third person, and not just for the incidental benefit of that person. Martis, 388 Ill. App.

3d at 1020. "Such an intention must be shown by an express provision in the contract identifying

the third-party beneficiary by name or by description of a class to which the third party belongs."

Martis, 388 Ill. App. 3d at 1020.



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        Dodd cites Alaniz v. Schal Associates, 175 Ill. App. 3d 310, 312-13 (1988). There, the

plaintiff, a sub-subcontractor's employee, brought suit against the subcontractor and the general

contractor for a work-related injury, alleging that he was an intended third-party beneficiary of

contracts entered into among the parties. Alaniz, 175 Ill. App. 3d at 311. On appeal, he relied on

a provision in a contract between the general contractor and the subcontractor stating that " '[t]he

subcontractor *** has the responsibility for maintaining the safety and loss prevention programs

covering all work performed by it, and its subcontractors.' " Alaniz, 175 Ill. App. 3d at 311-12. The

plaintiff argued that the provision allowed him to maintain an action against the subcontractor for

personal injuries caused by unsafe work conditions and equipment. Alaniz, 175 Ill. App. 3d at 312.

The court held that the contracting parties did not intend to confer a direct benefit to the plaintiff by

including general language about safety and loss-prevention programs. Alaniz, 175 Ill. App. 3d at

312-13.    Rather, they intended to benefit just themselves by setting forth their respective

responsibilities during construction. Alaniz, 175 Ill. App. 3d at 313. The court stated, "Given the

nature of the construction industry and the frequency with which construction injuries occur despite

safety precautions, we do not believe the presumption [that parties stipulate for themselves in a

contract and not for a third person] has been overcome." Alaniz, 175 Ill. App. 3d at 313. The court

further stated:

                  "It is not enough that an incidental benefit will flow to third parties; only a direct

        beneficiary has a right under a contract. [Citation.] We believe that more than the general

        safety provision found in the contract between [the subcontractor] and [the general

        contractor] is required to evidence an intent to directly benefit plaintiff. While plaintiff

        would most likely have received some benefit by implementation of safety programs, such



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        benefit is incidental to the direct benefit intended for the contracting parties, and thus is not

        sufficient to allow him to maintain an action on the contract. Plaintiff's action is better

        characterized as a tort action." Alaniz, 175 Ill. App. 3d at 314-15.

Dodd argues that, as in Alaniz, plaintiff may not rely on general safety language to create a

contractual duty of care toward him.

        Porter argues that no duty was created by its signing a standardized form contract that refers

to only safety provisions of a general nature. Porter cites American States Insurance Co. v. A.J.

Maggio Co., 229 Ill. App. 3d 422 (1992). There, a subcontractor's insurance company brought suit

against the general contractor to recover damages sustained as a result of the subcontractor's

employee slipping and falling on ice. The plaintiff alleged that the defendant failed to provide a

reasonably safe workplace as required by its contract with the subcontractor. American States

Insurance Co., 229 Ill. App. 3d at 423. It relied on a provision stating that the contractor " 'shall take

reasonable precautions for safety of, and shall provide reasonable protection to prevent damage,

injury or loss to *** employees on the Work and other persons who may be affected thereby.' "

American States Insurance Co., 229 Ill. App. 3d at 424-25. The appellate court stated that the

contract "imposes a duty of a very general nature to maintain the work area in a reasonably safe

condition--a duty no greater than would be imposed at common law on an owner or occupier of the

property." American States Insurance Co., 229 Ill. App. 3d at 426. The court further stated that a

defendant's duties will not be expanded beyond the scope of duties described in the contract.

American States Insurance Co., 229 Ill. App. 3d at 426. The court held that the duty claimed by the

plaintiff went beyond the agreement of the parties because the defendant assumed a duty no greater

than that which would ordinarily be expected of a landowner, and the contract did not contain an



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express provision requiring the removal of snow and ice from the construction site. American States

Insurance Co., 229 Ill. App. 3d at 427.

       Returning to the specific contractual provisions relied on by plaintiff here, the first one

requires the contractor to evaluate and be responsible for the jobsite safety of means, methods,

techniques, sequences, or procedures for which the contract documents provide "specific

instructions." Plaintiff does not point to any specific instruction in the contract documents requiring

defendants to level the ruts or maintain the ground in a certain manner, so he may not rely on this

provision to create a duty. The second provision requires the contractor to initiate, maintain, and

supervise all safety precautions and programs. This provision is similar to the one at issue in Alaniz.

It does not identify plaintiff by name or describe a class to which he belongs and therefore does not

confer a third-party-beneficiary status to plaintiff. Instead, as in Alaniz, by using general language

about safety precautions and programs, the contracting parties intended to benefit just themselves

by allocating their responsibilities on this subject, and any benefit to plaintiff would be incidental

rather than direct. The third provision plaintiff relies on requires the contractor to take reasonable

precautions for the safety of, and provide reasonable protection to prevent injury to, employees and

others on the site. The contractual language is almost identical to that at issue in American States

Insurance Co., and under that case, such language does not impose a duty greater than that which is

ordinarily owed by a landowner. As we already concluded that defendants did not owe plaintiff a

common-law duty under section 343, plaintiff's reliance on this provision fails as well.

       Plaintiff additionally argues that his complaint alleges a duty under the theory of construction

negligence, which should be viewed under section 414 of the Restatement (Second) of Torts and not

solely under section 343. Defendants point out that plaintiff did not raise a section 414 theory of



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recovery in the trial court, and Dodd argues that plaintiff thus has forfeited such an argument on

appeal. Plaintiff argues that his theory of construction negligence is present in his amended

complaint and has been litigated throughout the case. However, we agree that by never raising

section 414 in the trial court, plaintiff may not rely on it now to reverse summary judgment. See

Norman v. Brandt, 397 Ill. App. 3d 1074, 1079 (2010) (the plaintiffs forfeited their contention that

a section of the Restatement applied to the facts of their case, because they raised that section for the

first time on appeal).

        In any event, section 414 does not save plaintiff's claims. In general, a party that entrusts

work to an independent contractor is not liable for that contractor's acts or omissions. Calderon v.

Residential Homes of America, Inc., 381 Ill. App. 3d 333, 340 (2008). An exception to this rule is

provided by section 414, which states:

                "One who entrusts work to an independent contractor, but who retains the control of

        any part of the work, is subject to liability for physical harm to others for whose safety the

        employer owes a duty to exercise reasonable care, which is caused by his failure to exercise

        his control with reasonable care." Restatement (Second) of Torts §414 (1965).

This exception is known as the "retained control exception." Madden v. F.H. Paschen/S.N. Nielson,

Inc., 395 Ill. App. 3d 362, 380 (2009). Such liability usually arises where a general contractor

subcontracts work but superintends the job himself or through a foreman. Pekin Insurance Co. v.

Hallmark Homes, L.L.C., 392 Ill. App. 3d 589, 591 (2009). The general contractor may be

vicariously liable for the subcontractor's negligence if it retains control over the operative details of

the subcontractor's work, or it may be directly liable for not exercising its supervisory control with




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reasonable care. Calderon, 381 Ill. App. 3d at 341; see Restatement (Second) of Torts §414,

Comment a, at 387 (1965).

        For section 414 to apply:

                "[T]he employer must have retained at least some degree of control over the manner

        in which the work is done. It is not enough that he has merely a general right to order the

        work stopped or resumed, to inspect its progress or to receive reports, to make suggestions

        or recommendations which need not necessarily be followed, or to prescribe alterations and

        deviations. Such a general right is usually reserved to employers, but it does not mean that

        the contractor is controlled as to his methods of work, or as to operative detail. There must

        be such a retention of a right of supervision that the contractor is not entirely free to do the

        work in his own way." Restatement (Second) of Torts §414, Comment c, at 388 (1965).

"The mere existence of a safety program, safety manual, or safety director is insufficient to trigger

this exception." Madden, 395 Ill. App. 3d at 382.

        "The best indicator of whether a contractor has retained control over the subcontractor's work

is the parties' contract, if one exists." Downs v. Steel & Craft Builders, Inc., 358 Ill. App. 3d 201,

205 (2005). Porter argues that there is no evidence that there was a contract between it and Jones

& Brown and points out that Barr testified that both it and Jones & Brown were hired directly by

OSD 308. Porter also argues that there is no evidence that it took an active role in ensuring safety

or that it retained control over the incidental aspects of plaintiff's work. Dodd similarly points to the

lack of evidence of contracts between it and Porter and it and Jones & Brown, and Dodd argues that

it is impossible to know the extent of control, if any, that it had over either Porter's or plaintiff's

work. We agree that the lack of evidence of a contract between the respective companies



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undermines plaintiff's argument. Cf. Moiseyev v. Rot's Building & Development, Inc., 369 Ill. App.

3d 338, 351 (2006) (considering a lack of a contract between the general contractor and

subcontractor as evidence of no duty under section 414). Even if we construe the contracts between

defendants and OSD 308 as giving defendants a general right to ensure that safety precautions were

being exercised and that work was done in a safe manner, there is no indication that they had control

over the means and methods of an independent contractor's work, as is required to prevail under a

section 414 claim. See Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1071 (2003). In other words,

there is no evidence that Dodd controlled the operative details of Porter's work or that Porter was not

free to do its work in its own way. See Joyce v. Mastri, 371 Ill. App. 3d 64, 75-76 (2007). The

evidence also shows that defendants did not control plaintiff's work. Accordingly, plaintiff's reliance

on section 414 is not persuasive.

       Last, plaintiff argues that the trial court failed to give proper weight to the "Statement of

Opinions" of Kenneth Yotz, which was attached to plaintiff's motion to reconsider. Plaintiff's

motion to reconsider stated that Yotz: was the senior vice president of Environmental, Management

and Training Systems, Inc.; had over 38 years of experience in the construction industry; and

specialized in occupational and environmental health and safety issues. In the signed "Statement of

Opinions," Yotz opined that: Dodd controlled the work performed by Jones & Brown and plaintiff;

Porter created the hazardous ruts with its lulls; defendants failed to conduct frequent and regular

inspections of the jobsite, as required by OSHA standards; and Dodd failed to maintain access and

pedestrian roads, to maintain means of egress free of impediments, and to clear passageways for the

safe movement of workers, all in violation of OSHA standards. Yotz opined that these failures were

the proximate cause of plaintiff's fall and resulting injuries.



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        Defendants argue that the trial court properly disregarded Yotz's statement because it was

substantially insufficient under Supreme Court Rule 191 (210 Ill. 2d R. 191), which states in relevant

part:

        "Affidavits in support of and in opposition to a motion for summary judgment under section

        2--1005 of the Code of Civil Procedure *** shall be made on the personal knowledge of the

        affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or

        defense is based; shall have attached thereto sworn or certified copies of all papers upon

        which the affiant relies; shall not consist of conclusions but of facts admissible in evidence;

        and shall affirmatively show that the affiant, if sworn as a witness, can testify competently

        thereto." 210 Ill. 2d R. 191.

Defendants argue that Yotz's statement did not list the facts upon which Yotz based his opinions or

include copies of all the papers on which Yotz relied. See Robidoux v. Oliphant, 201 Ill. 2d 324,

334-35, 339-40 (2002) (under the plain language of Rule 191, affidavits submitted in support of or

in opposition to summary judgment must consist of facts admissible in evidence rather than

conclusions, and they must have any supporting papers attached). Defendants also argue that

contrary to Rule 191, Yotz's statement does not qualify as an affidavit because it does not appear that

he took an oath. See Robidoux, 201 Ill. 2d at 343 (affidavit under Rule 191(a) does not need to be

verified, but the affiant's name must appear as one who has taken an oath). Defendants point out that

they objected to the statement at the hearing on plaintiff's motion to reconsider.

        Plaintiff notes that in his initial response to the summary judgment motions, he attached a

Rule 191 affidavit signed by his attorney. Plaintiff's attorney averred that although the parties were

not yet required to disclose opinion witnesses, he had discussed the case with several potential expert



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witnesses, and at the time of trial, plaintiff would present expert testimony regarding the violations

of applicable OSHA standards and other standards accepted in the construction industry. Plaintiff

argues that Yotz's affidavit was intended to supplement his attorney's affidavit, and he points out that

the trial court did not strike Yotz's statement.

        Defendants counter that regardless of Rule 191 compliance, there is no reason Yotz's

statement could not have been submitted earlier, in time for the initial decision on summary

judgment.

        We agree with defendants' position. A motion to reconsider is meant to bring to the trial

court's attention newly discovered evidence not available at the prior hearing, changes in the law,

or errors in the trial court's application of existing law. Caywood v. Gossett, 382 Ill. App. 3d 124,

133 (2008). A ruling on a motion to reconsider is typically reviewed for an abuse of discretion, but

a motion to reconsider a grant of summary judgment typically questions the trial court's application

of existing law, and the denial of such a motion is reviewed de novo. Duresa v. Commonwealth

Edison Co., 348 Ill. App. 3d 90, 97 (2004). To the extent that plaintiff sought to have Yotz's

statement considered as newly discovered evidence, it would not qualify because there is no

indication that it was not available prior to the hearing on the motions for summary judgment. See

Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 65 (2001). " 'Trial courts should

not allow litigants to stand mute, lose a motion, and then frantically gather evidentiary material to

show that the court erred in its ruling.' " Landeros, 321 Ill. App. 3d at 65, quoting Gardner v.

Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991). The statement would

also not qualify as a supplement to plaintiff's attorney's affidavit because, in addition to the fact that

it was from a different individual, even a revised expert affidavit would have to contain newly



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discovered evidence in order to be proper for a motion to reconsider. See Landeros, 321 Ill. App.

3d at 66. Finally, as Dodd points out, Yotz relies on OSHA regulations, but OSHA regulations in

and of themselves do not create a duty of care. Recio v. GR-MHA Corp., 366 Ill. App. 3d 48, 58

(2006). Accordingly, the trial court did not err in according little or no weight to Yotz's statement,

or in denying plaintiff's motion to reconsider.

                                        III. CONCLUSION

       For the foregoing reasons, we conclude that the trial court did not err in granting summary

judgment for defendants or in denying plaintiff's motion to reconsider. We therefore affirm the

judgment of the circuit court of Kendall County.

       Affirmed.

       McLAREN and JORGENSEN, JJ., concur.




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