{ "id": 3716928, "name": "CARLOTA ALQADHI, Plaintiff-Appellant, v. STANDARD PARKING, INC., et al., Defendants-Appellees", "name_abbreviation": "Alqadhi v. Standard Parking, Inc.", "decision_date": "2010-11-05", "docket_number": "No. 1\u201408\u20143554", "first_page": "14", "last_page": "20", "citations": [ { "type": "official", "cite": "405 Ill. App. 3d 14" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "612 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 811", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5111059 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0811-01" ] }, { "cite": "681 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 1021", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596901 ], "year": 1997, "pin_cites": [ { "page": "1023" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/1021-01" ] }, { "cite": "768 N.E.2d 46", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "329 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472414 ], "year": 2002, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0038-01" ] }, { "cite": "887 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "parenthetical": "citing cases" } ], "opinion_index": 0 }, { "cite": "382 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277047 ], "year": 2008, "pin_cites": [ { "page": "8", "parenthetical": "citing cases" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0001-01" ] }, { "cite": "346 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3833685 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "692-93" }, { "page": "693" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0687-01" ] }, { "cite": "401 Ill. App. 3d 1044", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4303060 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "1053" }, { "page": "1053" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/401/1044-01" ] }, { "cite": "830 N.E.2d 722", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "whether a condition is open and obvious \"depends not on plaintiff's subjective knowledge but, rather, on the objective knowledge of a reasonable person confronted with the same condition\"" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135877 ], "year": 2005, "pin_cites": [ { "page": "1028", "parenthetical": "whether a condition is open and obvious \"depends not on plaintiff's subjective knowledge but, rather, on the objective knowledge of a reasonable person confronted with the same condition\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/1023-01" ] }, { "cite": "799 N.E.2d 740", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718973 ], "year": 2003, "pin_cites": [ { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0830-01" ] }, { "cite": "566 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "141 Ill. 2d 430", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238667 ], "year": 1990, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0430-01" ] }, { "cite": "772 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "201 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477033 ], "year": 2002, "pin_cites": [ { "page": "15, 17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0001-01" ] }, { "cite": "665 N.E.2d 826", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "171 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57330 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "456" }, { "page": "445" }, { "page": "456" }, { "page": "456" }, { "page": "456-57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0435-01" ] }, { "cite": "914 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "394 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4290933 ], "year": 2009, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/394/0591-01" ] }, { "cite": "862 N.E.2d 985", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "224 Ill. 2d 154", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607118 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "162-63" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0154-01" ] }, { "cite": "42 U.S.C. \u00a712101", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "et seq." }, { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 195", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140092 ], "year": 2000, "pin_cites": [ { "page": "203", "parenthetical": "\"summary judgment is not proper when reasonable minds could differ as to whether a condition was open and obviousE;] *** such a determination involves a finding of fact\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/314/0195-01" ] }, { "cite": "268 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381796 ], "year": 1994, "pin_cites": [ { "page": "1044" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/268/1031-01" ] }, { "cite": "185 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121957 ], "year": 1998, "pin_cites": [ { "page": "388" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/185/0380-01" ] }, { "cite": "329 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472414 ], "year": 2002, "pin_cites": [ { "page": "43", "parenthetical": "\"Whether a condition presents an open and obvious danger is a question of fact\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/329/0038-01" ] }, { "cite": "382 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277047 ], "year": 2008, "opinion_index": 1, "case_paths": [ "/ill-app-3d/382/0001-01" ] }, { "cite": "201 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477033 ], "year": 2002, "pin_cites": [ { "page": "20", "parenthetical": "Harrison, C.J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/201/0001-01" ] } ], "analysis": { "cardinality": 720, "char_count": 13712, "ocr_confidence": 0.763, "pagerank": { "raw": 6.667419487874775e-08, "percentile": 0.40602965655526635 }, "sha256": "554825c62dc5c482a29889536ecadf1ee7fdf7a7d815a42ff3536eeb07a661c4", "simhash": "1:9f6cb05b3e25f48c", "word_count": 2239 }, "last_updated": "2023-07-14T15:12:02.087067+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CARLOTA ALQADHI, Plaintiff-Appellant, v. STANDARD PARKING, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nPlaintiff Carlota Alqadhi appeals summary judgment on her premises liability complaint. The trial court found without explanation the condition causing plaintiffs injury was open and obvious as a matter of law. We believe the trial court discounted the testimony of plaintiffs expert, which, if believed, created a question of fact for the trier of fact. We reverse and remand for further proceedings.\nOn September 25, 2001, plaintiff tripped and fell over raised concrete while leaving defendants\u2019 parking garage and suffered injury to her knees. Plaintiff\u2019s complaint alleged she tripped because defendants failed to mark a 3/4-inch rise in concrete of a wheelchair-accessible ramp near the second-floor exit to defendants\u2019 garage. Defendants moved for summary judgment on plaintiffs complaint. Defendants argued: (1) no foreseeable risk was created by the raised concrete; and (2) the condition causing plaintiffs injury was open and obvious. Plaintiff responded to defendants\u2019 motion for summary judgment with her own deposition testimony and an affidavit by a registered professional engineer. Plaintiff testified that the raised concrete created an optical illusion of a flat walking surface: \u201c[i]t was all the same color and because it was a new building, they hadn\u2019t painted it yellow yet. So it all kind of fused. As you were walking, it all kind of looked the same.\u201d She described the lighting by the step as \u201clow,\u201d \u201cdim,\u201d \u201cdark\u201d and \u201cbad.\u201d She admitted she had parked in the garage before without incident but said she normally parked on the fourth floor, where the ramp was marked with yellow contrast paint. When defense counsel asked whether plaintiff had noticed the step on the second floor before, plaintiff replied \u201cI would see it as I was walking because I didn\u2019t fall before. So I would see it.\u201d She admitted she probably would have seen the raised concrete if she had been looking downward.\nPlaintiff\u2019s engineer evaluated the area where plaintiff fell. He acknowledged that the ramp was imprinted with a cross-hatched diamond pattern designed to warn pedestrians and that the imprint complied with the Americans with Disabilities Act of 1990 (42 U.S.C. \u00a712101 et seq. (2000)). But, he found:\n\u201cThe lack of contrast between the surface of the parking level and the curb ramp *** disguised the abrupt change in vertical elevation between the parking level and those surfaces, and the abrupt change in vertical elevation as marked by Plaintiff on the proffered photograph at her deposition was not obvious. Application of contrast paint was essential ***.\u201d\nHe concluded that defendants\u2019 failure to mark the curb with contrast paint was the proximate cause of plaintiffs accident and stated:\n\u201c[I]t is my opinion within a reasonable degree of forensic engineering certainty that every Federal and State accessibility standard, every National consensus, accessibility standard, building or property maintenance standard *** supports the assertion that an abrupt vertical change in the level of adjacent horizontal surfaces in excess of one-quarter inch is a dangerous tripping hazard.\u201d\nThe trial court found that the raised concrete was an open and obvious condition and granted summary judgment to both defendants, Standard Parking, Inc., and Center at River East, L.L.C. The trial court later denied plaintiffs motion to reconsider. Plaintiff appeals.\nSummary judgment is proper where \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2\u2014 1005(c) (West 2000). A genuine issue of material fact exists \u201cwhere the material facts are disputed or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts.\u201d Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 162-63, 862 N.E.2d 985 (2007). We review summary judgment orders de nova. Bagent, 224 Ill. 2d at 163.\nThe 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 (3) an injury proximately caused by the breach. Matthews v. Aganad, 394 Ill. App. 3d 591, 598, 914 N.E.2d 1233 (2009). On appeal, plaintiff claims defendants owed her a duty to mark or paint \u201cthe step\u201d at issue. The factors used to determine the existence of a duty include: (1) the likelihood of injury; (2) the reasonable foreseeability of such injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 456, 665 N.E.2d 826 (1996). Whether defendants owed plaintiff a duty of reasonable care is a question of law for the court. Bucheleres, 171 Ill. 2d at 445.\nDefendants contend that \u201cthe step\u201d was an open and obvious condition, negating any alleged duty owed to plaintiff. The open and obvious doctrine is an exception to the general duty of care owed by a landowner and in Illinois is based on the Restatement (Second) of Torts:\n\u201cA 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.\u201d Restatement (Second) of Torts \u00a7343A(1) (1965).\nOur supreme court has held that the doctrine implicates the first two factors of the traditional duty analysis: likelihood of injury and foreseeability. Sollami v. Eaton, 201 Ill. 2d 1, 15, 17, 772 N.E.2d 215 (2002), citing Bucheleres, 171 Ill. 2d at 456. Where a condition is deemed open and obvious, the likelihood of injury is generally considered slight because it is assumed that people encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks. Bucheleres, 171 Ill. 2d at 456. Injuries caused by open and obvious conditions are unlikely to be reasonably foreseeable as people will generally appreciate the risks associated with such conditions and exercise care for their own safety. Bucheleres, 171 Ill. 2d at 456-57.\nA condition is open and obvious where a reasonable person in the plaintiff\u2019s position exercising ordinary perception, intelligence and judgment would recognize both the condition and the risk involved. Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435, 566 N.E.2d 239 (1990); Green v. Jewel Food Stores, Inc., 343 Ill. App. 3d 830, 832, 799 N.E.2d 740 (2003); see also Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1028, 830 N.E.2d 722 (2005) (whether a condition is open and obvious \u201cdepends not on plaintiff\u2019s subjective knowledge but, rather, on the objective knowledge of a reasonable person confronted with the same condition\u201d).\nNormally where there is no dispute about the physical nature of the condition, the question of whether a condition is open and obvious is a legal one for the court. Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1053 (2010), citing Belluomini v. Stratford Green Condominium Ass\u2019n, 346 Ill. App. 3d 687, 692-93 (2004). But, \u201cwhere there is a dispute about the condition\u2019s physical nature, such as its visibility, the question of whether a condition is open and obvious is factual.\u201d Wilfong, 401 Ill. App. 3d at 1053, citing Belluomini, 346 Ill. App. 3d at 693. Where a court cannot conclude as a matter of law that a condition poses an open and obvious danger \u201c \u2018the obviousness of the danger is for the jury to determine.\u2019 \u201d Duffy v. Togher, 382 Ill. App. 3d 1, 8, 887 N.E.2d 535 (2008) (citing cases).\nHere, the trial court found as a matter of law that the raised concrete causing plaintiffs injury was open and obvious. But we must disagree based on the testimony of plaintiffs expert. Plaintiff described the lighting conditions around the curb as \u201clow\u201d and \u201cdark.\u201d She testified that she was unable to appreciate the change in elevation from the parking lot and the curb, and that the lack of contrast created the \u201cillusion\u201d of walking on a flat surface. Plaintiffs engineer\u2019s opinion supports plaintiffs observations. He concluded that the lack of contrast paint \u201cdisguised\u201d the change in vertical elevation between the parking lot and the curb, creating an impermissible tripping hazard that was \u201cnot obvious.\u201d\nIn contrast, defendants contend that the unpainted curb was not a dangerous condition. They argue that \u201c[t]here is no question of fact that Plaintiff could not appreciate and avoid any risk.\u201d They describe the area as \u201cwell lit,\u201d the pavement \u201csmooth and free from defects\u201d and the curb as visible and open and obvious. Defendants suggest that the curb\u2019s compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. \u00a712101 et seq. (2000)) militates against imposing a duty. But, plaintiff\u2019s expert pointed out that while the curb ramp \u201cwould be safe for a wheelchair bound person,\u201d the lack of contrast paint creates a risk of tripping \u201cfor a person who is simply walking.\u201d\nWe cannot characterize this case as one where there is \u201cno dispute about the physical nature of the condition.\u201d See Belluomini, 346 Ill. App. 3d at 694; Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 44, 768 N.E.2d 46 (2002) (\u201c[w]here defendants themselves were unable to appreciate \u2018any danger\u2019 presented by the [condition] and plaintiff had encountered [the condition] previously without incident, a question of fact exists as to whether a reasonable person in plaintiffs position would likewise have failed to appreciate the risk presented by [the condition] at the time plaintiff fell\u201d).\nDefendants argue in the alternative that summary judgment can be affirmed under the \u201cde minimis\u201d rule, which \u201cstates that minor municipal sidewalk defects are generally not actionable.\u201d Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1023, 681 N.E.2d 96 (1997). Defendants correctly note that the rule has been extended to private landowners under certain circumstances. See Hartung v. Maple Investment & Development Corp., 243 Ill. App. 3d 811, 612 N.E.2d 885 (1993). Hartung is a thoughtful, well-reasoned review of the de minimis rule. But it recognized that a minor defect \u201cmay be actionable where there are other aggravating factors such as heavy traffic because pedestrians may be distracted and must be constantly alert to avoid bumping into each other.\u201d Hartung, 243 Ill. App. 3d at 815. In the case before us, both plaintiff and her expert testified to impaired visibility which concealed an otherwise minor defect. We believe the testimony was sufficient to remove this case from application of the open and obvious doctrine and the de minimis rule.\nThe judgment of the circuit court is reversed and remanded for further consideration consistent with this opinion.\nReversed and remanded.\nJ. GORDON, J., concurs.", "type": "majority", "author": "JUSTICE CAHILL" }, { "text": "JUSTICE R.E. GORDON,\nspecially concurring:\nI agree with the majority\u2019s disposition of the case, but write separately to clarify the issue concerning an open and obvious danger.\nThe question of whether a particular landowner owed a duty of care to a particular invitee under a theory of premises liability is a question of law. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (1998). However, when a court cannot conclude as a matter of law that a condition posed an open and obvious danger, then \u201cthe obviousness of the danger is for the jury to determine.\u201d Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1044 (1994); Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43 (2002) (\u201cWhether a condition presents an open and obvious danger is a question of fact\u201d), cited by Sollami v. Eaton, 201 Ill. 2d 1, 20 (2002) (Harrison, C.J., dissenting) (\u201cWhether a condition presents an open and obvious danger is a question of fact for the trier of fact\u201d); Buchaklian v. Lake County Family Young Men\u2019s Christian Ass\u2019n, 314 Ill. App. 3d 195, 203 (2000) (\u201csummary judgment is not proper when reasonable minds could differ as to whether a condition was open and obviousE;] *** such a determination involves a finding of fact\u201d).\nIn Duffy v. Togher, 382 Ill. App. 3d 1 (2008), we found that when a 21-year-old plaintiff dove into an in-ground swimming pool located in the backyard of a single-family home and sustained serious injuries, the question of an open and obvious danger was a jury question. In that case, an expert testified that there was an optical illusion that the pool had both a shallow and a deep end, and from the physical design of the pool, it was not an open and obvious danger, which supported plaintiffs observations. In the case at bar, as the majority ably points out, plaintiffs expert testified that plaintiff was unable to appreciate the change in elevation from the parking lot and curb when the lighting conditions were \u201clow\u201d and \u201cdark,\u201d and that the lack of contrast created the \u201cillusion\u201d of walking on a flat surface, which also supported plaintiff\u2019s observations. In Duffy and this case, expert testimony aided the plaintiffs theory of liability in creating a factual issue for the trier of fact.", "type": "concurrence", "author": "JUSTICE R.E. GORDON," } ], "attorneys": [ "Richard Sklare, of Evins & Sklare, Ltd., of Chicago, for appellant.", "Jeremiah P. Connolly and Gregory V. Ginex, both of Bollinger, Ruberry & Garvey, of Chicago, for appellee Standard Parking, Inc.", "Knight, Hoppe, Kurnik & Knight, Ltd., of Rosemont (Paul B. Johnson and Matthew C. Clark, of counsel), for appellee Center at River East, L.L.C." ], "corrections": "", "head_matter": "CARLOTA ALQADHI, Plaintiff-Appellant, v. STANDARD PARKING, INC., et al., Defendants-Appellees.\nFirst District (6th Division)\nNo. 1\u201408\u20143554\nOpinion filed November 5, 2010.\nGORDON, ROBERT E., J., specially concurring.\nRichard Sklare, of Evins & Sklare, Ltd., of Chicago, for appellant.\nJeremiah P. Connolly and Gregory V. Ginex, both of Bollinger, Ruberry & Garvey, of Chicago, for appellee Standard Parking, Inc.\nKnight, Hoppe, Kurnik & Knight, Ltd., of Rosemont (Paul B. Johnson and Matthew C. Clark, of counsel), for appellee Center at River East, L.L.C." }, "file_name": "0014-01", "first_page_order": 30, "last_page_order": 36 }