                           ILLINOIS OFFICIAL REPORTS
                                     Appellate Court




          Ballog v. City of Chicago, 2012 IL App (1st) 112429



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



District & No.             First District, Sixth Division
                           Docket No. 1-11-2429


Filed                      October 26, 2012


Held                       Summary judgment was properly entered for
(Note: This syllabus       defendant city in an action for the broken foot
constitutes no part of
the opinion of the court   plaintiff suffered when she fell on a city street, since
but has been prepared      the gap in the street that caused her fall was an open
by the Reporter of
Decisions for the          and obvious condition that required her to exercise
convenience of the         reasonable care for her own safety, and the
reader.)
                           deliberate encounter exception did not apply.
Decision Under Appeal from the Circuit Court of Cook County, No.
Review         08-L-12290; the Hon. Mary Mulhern, Judge,
               presiding.



Judgment          Affirmed.


Counsel on        Joseph V. Roddy and Jeane N. Brown, both of Law
Appeal            Offices of Joseph V. Roddy, of Chicago, for
                  appellant.

                  Stephen R. Patton, Corporation Counsel, of Chicago
                  (Benna Ruth Solomon, Myriam Zreczny Kasper,
                  and Justin A. Houppert, Assistant Corporation
                  Counsel, of counsel), for appellee.


Panel             JUSTICE GARCIA delivered the judgment of the
                  court, with opinion.
                  Presiding Justice Lampkin and Justice Hall
                  concurred in the judgment and opinion.



                              OPINION

¶1      Plaintiff Eleanor Ballog appeals from the circuit court’s grant
     of summary judgment to defendant City of Chicago (the City) in
     her suit charging the City with negligence. The plaintiff fractured
                                  -2-
     her foot when she tripped as she stepped from the portion of the
     street that had been excavated, refilled with concrete, but not
     resurfaced. We append two photographs of the location, identified
     as “Plaintiff’s Exhibit #1” and “Plaintiff’s Exhibit #5.” The
     plaintiff marked plaintiff’s Exhibit No. 5 to show where she
     landed on the connecting sidewalk when she fell. The plaintiff
     contends summary judgment was precluded because two material
     questions of fact remain: (1) whether the condition that caused the
     plaintiff to fall was an open and obvious condition; and (2)
     whether the deliberate encounter exception to the open and
     obvious doctrine applied. We hold the condition of the street was
     open and obvious as a matter of law where the parties do not
     dispute the physical nature of the condition and the exception did
     not apply where no deliberate encounter occurred. We affirm.

¶2                         BACKGROUND
¶3      On August 17, 2008, the plaintiff was injured in a fall at the
     intersection of North Leavitt Street and West Belle Plaine Avenue
     in Chicago. At her deposition on November 13, 2009, the plaintiff
     testified that at 11:15 a.m., she left her residence to walk five
     blocks to attend church services. She identified several
     photographs that depicted the intersection where she fell. Asked
     to describe how she fell, the plaintiff stated that she did not see
     the gap in the street as she crossed Belle Plaine Avenue in the
     crosswalk, as she walked southbound on Leavitt. She was
     “admiring” the construction that had been completed at the
     intersection, which had been ongoing for six months. During the
     construction, she had observed warning signs on the streets. When
     she walked to church while the streets were under construction,
     she would “walk in the middle of the street” instead of using the

                                  -3-
   crosswalk at the intersection. She could not recall if she had
   walked to church the week before the incident and could not
   recall the last time she was in the area prior to her fall. The
   plaintiff always walked the same route to attend church. She
   stated that she was familiar with the area and traveled in that
   location “[e]very week, or every two weeks” for years.
¶4    On the date the plaintiff fell, it was a beautiful, dry August day.
   The plaintiff testified, “There [were] no signs saying there was
   construction still, nothing. As I was walking, I had canvas shoes
   on, lightweight. It was summer.” She continued, “There was
   nothing to say that anything was wrong with the streets. My foot
   went on the edge of the–that was up, twisted, I fell to my knees,
   and couldn’t remember the rest because I woke up and I was in a
   lady’s arms.” When asked whether anything distracted her
   immediately prior to her fall, the plaintiff answered, “The
   niceness of the streets, the clean up.” Before she fell she “was
   looking towards the church,” that was “[a]head of [her].” She
   stated that she did not see the unfilled portion of the street until
   she fell. When asked what caused her to fall, the plaintiff
   responded, “the street wasn’t finished. The construction was not
   done.” The plaintiff was asked, “[B]efore the accident, if you
   were looking down, were you able to see [the gap in the street]?”
   The plaintiff answered, “From crossing, no. You just thought to
   yourself it’s done. Look how beautiful. That was it.” The plaintiff
   fractured her right foot in the fall.
¶5    After the plaintiff fell, she observed the unfilled portion of the
   street. The plaintiff made clear that the gap where she tripped was
   not covered or obscured by leaves, debris, or anything else.
   According to the plaintiff, she could not see the gap as she entered
   the intersection because the elevated center of the street obscured

                                   -4-
   her view of the other side. A photograph of the intersection
   depicted in plaintiff’s Exhibit No. 1 reveals that in addition to the
   gap that caused her fall, a similar gap in the surface of the street
   existed at the corner from where the plaintiff began her walk
   across Belle Plaine Avenue.
¶6     The plaintiff marked where she landed after she fell on
   plaintiff’s Exhibit No. 5, a photograph of the intersection. The gap
   abutted the beginning of the sidewalk and ran some unspecified,
   but short distance into the street. Neither party provided the
   dimensions of the gap from the end of the surface covering of the
   street to the start of the sidewalk. Plaintiff’s Exhibit No. 5 depicts
   a plainly visible elevation where the concrete of the sidewalk
   abuts the street. The plaintiff did not measure the height of the
   elevation from the gap to the concrete of the sidewalk that is
   visible on plaintiff’s Exhibit No. 5.
¶7     Karin Meyers testified at her deposition on January 28, 2011,
   that on August 17, 2008, she was walking with her boyfriend to
   the grocery store and passed the plaintiff on the sidewalk as they
   walked in the same direction on Leavitt. “[A]nd then once we
   were halfway down the block after that intersection, we heard her
   fall.” Meyers did not see the plaintiff fall, but as soon as she heard
   her fall, she “knew exactly what had happened ’cause I almost
   tripped at the same thing crossing that intersection.” According to
   Meyers, at that same intersection, “I didn’t fall, but I had taken a
   little, you know, stumble at this same exact spot.” When asked to
   describe how she stumbled, Meyers responded, “I think it was the
   edge of the road and then not getting my foot up for the edge of
   the curb in time, and so the tripping on the edge of the curb there
   in that ditch that’s between the street and the sidewalk.” Meyers
   described the “ditch” as a “nonfilled-in area between the street

                                   -5-
   and the sidewalk.” Meyers did not see the gap until after she
   stumbled on it. She did not recall seeing any warning signs or
   barriers at the intersection on the date of the incident. However,
   the area was not covered or obscured by any debris.
¶8    After she heard the plaintiff fall, Meyers returned to the
   intersection to assist the plaintiff. According to Meyers, the
   plaintiff indicated she had fallen because of the “problem with
   the–you know, not being filled in right between the street and the
   curb.” The City’s attorney asked Meyers if she could recall the
   height difference between the downward slope of the sidewalk at
   the curb and the gap. Meyers responded, “I doubt it was more
   than two inches, but maybe around two inches. The problem is
   that it dips down and then–you’ve got this unexpected dip down
   even if it’s not very deep and then an unexpected dip up or step up
   that’s just a few feet–you know, just like a foot later, and so if
   you’re walking in a normal distance between your feet, one of
   those is going to get tripped up either going in or going out.” She
   stated that it was difficult to see the gap when approaching from
   the opposite side of the street. Meyers identified the gap in the
   street in a photograph of the intersection: “I can see it looking at
   the photograph.” However, she did not see the gap as she crossed
   the street because she was “expecting it to be like a normal street
   meeting the curb, so I was looking just up and about at, you
   know, trees or my boyfriend or whatever.” Meyers did not know
   how long the gap was there prior to the plaintiff’s fall. Meyers
   stated, “I mean it hadn’t been there always. I have the sense that
   maybe it had been there for just a short time, maybe a week or
   something, I don’t know because I hadn’t been there–I don’t think
   it had been there the previous time that I walked down there
   which was probably, you know, a couple of weeks beforehand.”

                                  -6-
¶9     On April 26, 2011, the City moved for summary judgment,
    arguing that the unfilled portion of the street was an open and
    obvious condition that did not give rise to a duty of care owed by
    the City to the plaintiff. The City contended the photographs and
    the plaintiff’s testimony showed the gap was “clearly visible and
    any pedestrian walking along that portion of the crosswalk can see
    that part of the crosswalk was taken out.” The City asserted that
    the open and obvious condition was not unreasonably dangerous;
    nor was it reasonable to require the City to anticipate that a
    pedestrian, in the exercise of ordinary care, would not have taken
    the precautions necessary to safely traverse the area. In other
    words, a reasonable person in the plaintiff’s position would have
    seen the condition and appreciated the risk of walking over it.
¶ 10 In her response, the plaintiff argued that “a genuine issue of
    fact exists as to whether the excavated gap in the street was an
    open and obvious condition.” According to the plaintiff, the
    deposition testimony established that neither she nor Meyers
    could see the gap in the crosswalk when walking toward it from
    the opposite side of the street. The plaintiff asserted the City
    should have placed warning signs or barriers at the crosswalk to
    notify pedestrians that construction was incomplete. The plaintiff
    contended that, even assuming the gap was an open and obvious
    condition, the deliberate encounter exception applied because the
    City should reasonably expect that pedestrians would utilize the
    crosswalk.
¶ 11 In its reply, the City raised its immunity under the Local
    Governmental and Governmental Employees Tort Immunity Act
    (the Act) (745 ILCS 10/3-104 (West 2010)) as to any contention
    that it should have placed warnings or barricades at the
    intersection. The City argued in its reply that section 3-104 of the

                                  -7-
    Act immunizes the City “ ‘against all liability arising from its
    failure to initially provide a traffic control device, even where
    such failure might endanger safety’ ” (quoting Bonner v. City of
    Chicago, 334 Ill. App. 3d 481, 487 (2002)). The City contested
    the plaintiff’s claim that the deliberate encounter exception
    applied when no evidence was adduced that the plaintiff suffered
    from an economic compulsion to encounter the open and obvious
    condition. The City reiterated that the plaintiff is expected to
    exercise ordinary care for herself when confronted by the risk of
    injury from an open and obvious condition.
¶ 12 The circuit court granted the City’s motion for summary
    judgment on August 9, 2011.
¶ 13 The plaintiff timely appealed.

¶ 14                            ANALYSIS
¶ 15      The plaintiff contends the circuit court erred in granting
       summary judgment to the City because two material questions of
       fact remain. First, whether the gap in the street constituted an
       open and obvious condition was a question for the trier of fact.
       Second, the trier of fact should also decide whether the deliberate
       encounter exception to the open and obvious condition applied.
       The plaintiff argues, “The obviousness of a condition of whether
       in fact the condition itself served as 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.”
       Even if the condition of the street was open and obvious as a
       matter of law, the plaintiff urges that the deliberate encounter
       exception applies in this case because it is reasonable to expect
       that pedestrians will use the crosswalk. According to the plaintiff,
       the photographs of record “clearly show that there simply was no
                                     -8-
    other safe way for Plaintiff to cross the intersection other than by
    using the crosswalk.”
¶ 16 The City responds that the obviousness of the condition of the
    street means the City owed no duty to the plaintiff to protect her
    against the risk of falling as she stepped from the unfilled portion
    of the street. According to the City, the obviousness of the gap
    provided the plaintiff with adequate notice that she should
    exercise ordinary care to protect herself while traversing the gap.
    The City also disputes that the facts of this case warrant the
    application of the deliberate encounter exception to the open and
    obvious doctrine.

¶ 17                    Summary Judgment Review
¶ 18      Summary judgment is proper when the pleadings, depositions,
       and affidavits demonstrate that as a matter of law, the moving
       party is entitled to judgment. 735 ILCS 5/2-1005(c) (West 2010);
       Ishoo v. General Growth Properties, Inc., 2012 IL App (1st)
       110919. The purpose of summary judgment is not to answer a
       question of fact, but to determine whether one exists. Garcia v.
       Wooton Construction, Ltd., 387 Ill. App. 3d 497, 504 (2008). “In
       determining whether a genuine issue of material fact exists, a
       court must construe the materials of record strictly against the
       movant and liberally in favor of the nonmoving party.” Harlin v.
       Sears Roebuck & Co., 369 Ill. App. 3d 27, 31 (2006). Summary
       judgment should not be granted unless the movant’s right to
       judgment is free and clear from doubt. Mitchell v. Special
       Education Joint Agreement School District No. 208, 386 Ill. App.
       3d 106, 111 (2008). We review the grant of summary judgment
       de novo. American Family Mutual Insurance Co. v. Fisher
       Development, Inc., 391 Ill. App. 3d 521, 525 (2009).

                                   -9-
¶ 19                 Open and Obvious Condition
¶ 20     The open and obvious doctrine addresses the essential element
     of duty in a negligence cause of action. Choate v. Indiana Harbor
     Belt R.R. Co., 2012 IL 112948, ¶ 34; Harlin, 369 Ill. App. 3d at
     31 (“The open and obvious doctrine speaks to the duty element[,]
     which *** is a central element of any negligence claim.”). Absent
     a legal duty of care owed to the plaintiff, the defendant cannot be
     found negligent. Washington v. City of Chicago, 188 Ill. 2d 235,
     239 (1999). “That is so because [u]nless a duty is owed, there is
     no negligence [citation], and plaintiffs cannot recover as a matter
     of law.” (Internal quotation marks omitted.) Id.
¶ 21     Consequently, “[i]n any negligence action, the court must first
     determine as a matter of law whether the defendant owed a duty
     to the plaintiff.” Choate, 2012 IL 112948, ¶ 34; Ward v. K mart
     Corp., 136 Ill. 2d 132, 140 (1990). A duty of care arises when the
     law imposes “upon defendant an obligation of reasonable conduct
     for the benefit of plaintiff.” Ward, 136 Ill. 2d at 140. With respect
     to conditions on land, generally there is no duty of care owed by
     the landowner regarding open and obvious conditions because the
     landowner “could not reasonably be expected to anticipate that
     people will fail to protect themselves from any danger posed by
     the condition.” Id. at 148.
¶ 22 “The term ‘[o]bvious’ denotes that both the condition and the
     risk are apparent to and would be recognized by a reasonable
     [person], in the position of the visitor, exercising ordinary
     perception, intelligence, and judgment.” (Internal quotation marks
     omitted.) Prostran v. City of Chicago, 349 Ill. App. 3d 81, 85-86
     (2004) (quoting Deibert v. Bauer Brothers Construction Co., 141
     Ill. 2d 430, 435 (1990), quoting Restatement (Second) of Torts
     § 343A cmt. b, at 219 (1965)). “Whether a condition is open and

                                   -10-
    obvious depends on the objective knowledge of a reasonable
    person, not the plaintiff’s subjective knowledge.” Prostran, 349
    Ill. App. 3d at 86 (citing Bonner, 334 Ill. App. 3d at 484).
¶ 23 “[T]he requirement of an open and obvious danger is not
    merely a matter of the plaintiff’s contributory negligence, or the
    parties’ comparative fault, but rather a lack of the defendant’s
    duty owed to the [plaintiff].” Choate, 2012 IL 112948, ¶ 34.
    “Where there is no dispute about the physical nature of the
    condition, whether a danger is open and obvious is a question of
    law.” Id.
¶ 24 The City can reasonably expect pedestrians will exercise
    reasonable care for their own safety upon confronting an open and
    obvious condition, making it unnecessary for the City to take
    additional precautions for the benefit of pedestrians. Ward, 136
    Ill. 2d at 156. The condition itself serves as notice of the danger
    and risk to trigger a pedestrian’s “duty to exercise ordinary care
    for her own safety.” Prostran, 349 Ill. App. 3d at 87; Ward, 136
    Ill. 2d at 156; Bucheleres v. Chicago Park District, 171 Ill. 2d
    435, 447 (1996); Bonner, 334 Ill. App. 3d at 484.
¶ 25 The gap in the surface of the street is amply depicted in the
    photographs in the record, which make clear the nature of the
    condition. According to the plaintiff, that the nature of the
    condition is clear does not mean the condition was open and
    obvious as a matter of law. She asserts that while a reasonable
    person could conclude the gap in the street that she encountered
    was open and obvious, the issue should be resolved by a jury. The
    plaintiff relies on five cases for her position: Buchaklian v. Lake
    County Family Young Men’s Christian Ass’n, 314 Ill. App. 3d
    195 (2000); Simmons v. American Drug Stores, Inc., 329 Ill. App.
    3d 38 (2002); Nickon v. City of Princeton, 376 Ill. App. 3d 1095

                                 -11-
     (2007); Duffy v. Togher, 382 Ill. App. 3d 1 (2008); and Alqadhi
     v. Standard Parking, Inc., 405 Ill. App. 3d 14 (2010).
¶ 26     Alqadhi and Duffy are immediately distinguishable because in
     each case the plaintiff presented testimony of an expert to support
     the contention that the open and obvious condition raised a factual
     question, which this court expressly noted. Alqadhi, 405 Ill. App.
     3d at 15, 17-18 (“the testimony of plaintiff’s expert *** created
     a question of fact for the trier of fact”); Duffy, 382 Ill. App. 3d at
     9 (plaintiff’s expert testified the design of the pool was “very
     unusual,” “unsafe for the ordinary pool user,” and gave an
     “optical illusion of a deep end” (internal quotation marks
     omitted)). No such expert testimony was presented in this case.
¶ 27     Likewise, the facts in Buchaklian are too dissimilar to provide
     any support for the plaintiff’s contention in this case. In
     Buchaklian, the “plaintiff tripped and fell in the area of [the] mat”
     in the women’s locker room at the local YMCA. Buchaklian, 314
     Ill. App. 3d at 198. The circuit court determined that the YMCA
     owed no duty to the plaintiff “based on the ‘open and obvious
     condition’ doctrine.” Id. at 197. The plaintiff’s fall was caused by
     “one particular piece of the mat *** standing up approximately an
     inch or two [higher] than the other portions of the mat.” Id. at 198.
     The Second District reversed, disagreeing “with the trial court’s
     conclusion that, as a matter of law, the defect in the mat was an
     open and obvious danger that plaintiff could have avoided had she
     looked down at the floor in the area where she was going instead
     of looking straight ahead.” Id. at 202. While we have no dispute
     with the result reached in Buchaklian, the “defect in the mat,” as
     described by the court, is too dissimilar to the condition here to
     provide any guidance.
¶ 28     In Nickon, the Third District rejected the numerous challenges

                                   -12-
     by the defendant municipality to the jury’s verdict in favor of the
     plaintiff for injuries he sustained “after falling on a sidewalk
     located on Main Street in Princeton.” Nickon, 376 Ill. App. 3d at
     1097. Ultimately, the Third District rejected the municipality’s
     final contention that it was entitled to a judgment notwithstanding
     the verdict “because the depression in the sidewalk was ‘open and
     obvious.’ ” Id. at 1106. The Nickon court concluded that the
     condition of the sidewalk was for the jury to assess, which it did
     in finding the municipality liable. The Nickon court explained its
     ruling in light of the evidence before the jury. “The photographs
     entered into evidence show a small depression similar in color to
     the sidewalk, but partially covered by weeds. The photographs
     depict the depression was not visible until the photographer’s
     camera was almost directly above the depression.” Id. The court
     agreed with the plaintiff that “the issue of whether ‘people on the
     property would not discover or realize the danger’ of the
     depression was one of fact.” Id. It is clear that the parties in
     Nickon disputed the physical nature of the condition, which
     rendered the open and obvious question one for the jury to
     resolve. No such contention is present in this case.
¶ 29    The remaining case cited by the plaintiff for her contention that
     “whether the condition itself serviced as notice of its presence ***
     [is] properly left to the trier of fact,” is Simmons. This court in
     Simmons issued an unequivocal statement on the issue. “Whether
     a condition presents an open and obvious danger is a question of
     fact.” Simmons, 329 Ill. App. 3d at 43. However, Simmons can no
     longer stand as good authority on that proposition. As the Illinois
     Supreme Court recently reaffirmed, only where there is a “dispute
     about the physical nature of the condition” is the issue of an open
     and obvious condition a question for the trier of fact to resolve.
     Choate, 2012 IL 112948, ¶¶ 33-35 (overruling appellate court
                                  -13-
    cases that held the question of whether children could appreciate
    “hopping a moving train was dangerous” was factual; the court
    ruled that as a matter of law proximity to a moving train was an
    open and obvious dangerous condition reasonably known to
    children); see also Belluomini v. Stratford Green Condominium
    Ass’n, 346 Ill. App. 3d 687, 692-93 (2004) (“where there is no
    dispute about the physical nature of the condition, the question of
    whether the condition is open and obvious is legal”); cf. Alqadhi,
    405 Ill. App. 3d at 17-18 (“But, ‘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.’ ” (quoting
    Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1053
    (2010))).
¶ 30 The instant plaintiff, however, does not advocate that the
    “physical nature” of the gap in the street surface was disputed by
    the parties below. As a consequence, the cases the plaintiff cites
    provide no support for her position that the question of whether
    the gap in the street constituted an open and obvious condition
    was factual. Choate, 2012 IL 112948, ¶ 34; Belluomini, 346 Ill.
    App. 3d at 692-93; Wilfong, 401 Ill. App. 3d at 1053. Nor would
    we find such a dispute over the physical nature of the gap to be
    objectively reasonable given the clear condition of the street on
    both sides of Belle Plaine Avenue as depicted in the photographs
    in the record. As the photographs aided the court in Nickon, the
    photographs spread of record here confirm the physical nature of
    the condition was not subject to dispute.
¶ 31 The photographs in the record make clear that gaps in the
    surface of the street were present on both corners of the crosswalk
    on Belle Plaine Avenue at its intersection with Leavitt Street. The
    gap in the street on either corner of the crosswalk was patently

                                  -14-
    visible. At the very least, the existence of the very same condition
    of the street on the corner where the plaintiff began her walk
    placed her on notice that the same condition might well be present
    on the opposite side of the street. The plaintiff’s deposition
    testimony conclusively established that she was able to safely
    traverse the very same condition that she encountered on the other
    side of the crosswalk on Belle Plaine Avenue, where she suffered
    her fall. The plaintiff does not explain why the gap in the street
    that caused her fall should be seen any differently from the same
    gap that she safely traversed on the opposite corner. The same
    condition on the corner where she entered the crosswalk rendered
    her assertion as unremarkable that the opposite side of the street
    could not be seen over the elevated center of the street as she
    began her walk across Belle Plaine. While the City does not
    dispute that the plaintiff could not see the opposite corner as she
    began to cross Belle Plaine, a reasonable person would take note
    that a similar open and obvious condition at the start of the
    crosswalk might well be present on the opposite side. This is
    particularly so where the plaintiff was familiar with the
    construction undertaken at the intersection of Belle Plaine and
    Leavitt, as she testified at her deposition, which caused her to
    “walk in the middle of the street” while the construction signs
    were posted. However, the physical nature of the condition where
    she fell did not differ from the condition that she was able to
    safely traverse on the opposite side of the street. The plaintiff was
    under the same duty imposed on all pedestrians of ordinary
    perception, intelligence, and judgment to exercise reasonable care
    for her own safety in traversing the same open and obvious
    condition at the end of the crosswalk that she encountered at the
    start. Prostran, 349 Ill. App. 3d at 87.
¶ 32 Prostran, which involved a negligence claim by a pedestrian
                                  -15-
    for an injury she sustained on the City’s sidewalk, is instructive
    here. In Prostran, the plaintiff argued “that, due to her visual
    handicap, the defect in the sidewalk was not open and obvious
    and that, due to the general condition of the sidewalk, she did not
    see the specific rock upon which she tripped until after she fell.”
    Id. at 85. This court concluded that the visual disability did not
    relieve her “of the duty to exercise ordinary care for her own
    safety.” Id. at 87. “Given plaintiff’s testimony, we find that both
    the condition of the sidewalk and the risk of walking on it were
    apparent to and would have been recognized by a reasonable
    person or by a reasonable person under like disability exercising
    ordinary perception, intelligence, and judgment. Plaintiff’s visual
    impairment notwithstanding, the condition of the sidewalk was
    open and obvious.” Id. at 87. We affirmed the grant of summary
    judgment.
¶ 33 We are further guided by this court’s decision in Sandoval v.
    City of Chicago, 357 Ill. App. 3d 1023, 1029 (2005). In Sandoval,
    the condition at issue was a “large five-by-six-foot section of the
    sidewalk [that] was missing most of its concrete surface, and the
    dirt underneath was exposed.” Id. “While the dirt comprised a
    level surface, a big chunk of concrete remained, sticking upright
    some three to four inches from the dirt.” Id. The plaintiff fell in
    the “crater-like” defect in the sidewalk and fractured her ankle.
    The Sandoval court held that “any reasonable person exercising
    ordinary care in visiting this area would recognize and appreciate
    the risk involved in traversing this portion of the sidewalk and,
    specifically, the changes in elevation.” Id. We reached this
    conclusion based on the evidence in the record, which included
    photographs of the sidewalk. “From our review of the record,
    which contains descriptions and photographs of the area in
    question, it is clear that the defect was a condition of open and
                                 -16-
     obvious danger.” Id. We affirmed summary judgment for the City.
¶ 34    In the instant case, had the plaintiff exercised ordinary care for
     her own safety, as she apparently did in traversing the very same
     gap in the street surface as she began to cross Belle Plaine
     Avenue, she would have been able to safely traverse the gap on
     the opposite side of the crosswalk. The existence of the gap on
     both corners forecloses any suggestion that the gap was
     unreasonably dangerous to demand additional precautions by the
     City. “[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
     ***.” (Internal quotation marks omitted.) Ward, 136 Ill. 2d at 148.
     The City had no duty to “remove all dangers” from the crosswalk
     in order to avoid liability. Id. at 142. It would be impossible for
     the City to render the streets “injury-proof.” Id. at 156.
¶ 35 On de novo review, we agree with the circuit court that the
     condition of the street was open and obvious as a matter of law.

¶ 36               Deliberate Encounter Exception
¶ 37    The plaintiff argues that if we conclude that the condition of the
     street to be open and obvious as a matter of law, then whether the
     deliberate encounter exception applies raises a question of fact for
     a jury to resolve. In support, she asserts the crosswalk was the
     prescribed means of crossing the intersection and the
     photographic evidence establishes “there simply was no other safe
     way for Plaintiff to cross the intersection other than by using the
     crosswalk.”
¶ 38    The deliberate encounter 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
                                   -17-
    position the advantages of doing so would outweigh the apparent
    risk.’ ” Wilfong, 401 Ill. App. 3d at 1054 (quoting Restatement
    (Second) of Torts § 343A(1) cmt. f, at 220 (1965)). The deliberate
    encounter exception applies when, as the name suggests, the
    encounter is deliberate. LaFever v. Kemlite Co., 185 Ill. 2d 380,
    394-96 (1998) (where the court formally adopted the exception,
    while noting that a “deliberate choice” is involved); see Garcia v.
    Young, 408 Ill. App. 3d 614, 617 (2011) (deliberate encounter
    exception inapplicable where the “pothole” that constituted the
    open and obvious condition was never noticed by the plaintiff
    until after he was injured). If the deliberate encounter exception
    applies, then a duty of care exists. LaFever, 185 Ill. 2d at 398.
¶ 39 To determine whether an exception to the open and obvious
    rule applies, a court should “engage in the factor analysis that the
    supreme court has used to determine duty.” Belluomini, 346 Ill.
    App. 3d at 694; see LaFever, 185 Ill. 2d at 392-98 (the court
    found the deliberate encounter exception applied where the
    plaintiff had to encounter the open and obvious condition “to
    fulfill his employment obligations,” and even though the
    likelihood of injury did not weigh heavily in favor of finding a
    duty, the burden on landowner to protect against harm was slight,
    and consequences of placing that burden on landowner were
    unremarkable).
¶ 40 In the instant case, we find no reason to examine whether the
    four factors favor a finding that the City owed a legal duty to the
    plaintiff under the deliberate encounter exception to the open and
    obvious rule. The evidence establishes that the plaintiff did not
    deliberately encounter the open and obvious condition. LaFever,
    185 Ill. 2d at 396; Garcia, 408 Ill. App. 3d at 617; see also
    Belluomini, 346 Ill. App. 3d at 695 (distraction exception did not

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    apply “because there is no evidence that plaintiff was actually
    distracted”).
¶ 41 Had the plaintiff taken notice of the gap in the street’s surface
    to deliberately encounter the condition, she would have readily
    appreciated the slight risk of crossing the gap and, in the course
    of exercising due care for herself, been able to traverse it without
    incident, much as she did on the opposite side of the street. There
    is also no contention that the plaintiff was compelled to encounter
    the open and obvious condition as she had avoided the
    intersection during the period of actual construction. See
    Prostran, 349 Ill. App. 3d at 90 (“While this testimony reveals
    plaintiff’s preference for walking on the east side of North
    Oakley, it does not demonstrate that she was compelled to do
    so.”); Park v. Northeast Illinois Regional Commuter R.R. Corp.,
    2011 IL App (1st) 101283, ¶ 26 (deliberate encounter exception
    did not apply where there was no showing that a reasonable
    person “would have disregarded the obvious risk of crossing
    railroad tracks while a train is approaching”); Kleiber v. Freeport
    Farm & Fleet, Inc., 406 Ill. App. 3d 249, 259 (2010) (deliberate
    encounter exception did not apply where “plaintiff had another
    option available”).
¶ 42 On de novo review, we agree with the circuit court that the
    deliberate encounter exception to the open and obvious rule did
    not apply under the facts of this case.

¶ 43                        CONCLUSION
¶ 44     The circuit court did not err in granting summary judgment
       where the condition at issue was open and obvious as a matter of
       law and the deliberate encounter exception to the doctrine did not
       apply.
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¶ 45   Affirmed.




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