Is the City of Chicago liable for every accident that occurs when a pedestrian trips and falls on a public sidewalk? Of course not. But under certain circumstances, the City can be held liable.
The Appellate Court of Illinois, First District, considered just such a scenario in Waters v. City of Chicago, (No. 1–10–0759). In Waters, the plaintiff was injured when she tripped and fell over the metal base of a street barricade that jutted out into the sidewalk. She was stepping over the metal base when she was distracted by the sound of a jackhammer, at which point she tripped and fell, landing on her wrist. Her injury required surgery.
She later filed a personal injury lawsuit against the City of Chicago, alleging, in part, that the City owed her a duty of care under the “distraction exception” to the open and obvious danger theory. In other words, she alleged that even though the existence of the barrier and the dangers presented by it were obvious, the City nevertheless owed her a duty of care because the City should have known that her attention might be distracted by the construction occurring nearby, thus resulting in her loss of concentration and subsequent injury.
The Court concluded that although the issue was not clear cut, there were questions of fact for a jury to consider and thus granting summary judgment in favor of the defendant was improper:
(D)espite the obviousness of the barricade and its base, plaintiff became distracted upon hearing the loud noise from the jackhammer. Defendant created the hazard but not the distraction. It is reasonable to expect that a defendant who places a barricade over a sidewalk and places a portion of their bases in an area of ingress and egress on a public sidewalk without signs warning people to avoid walking in the area could foresee that people could reasonably become injured and would likely become injured if they used the walkway. It can also be reasonably expected that people would walk on the sidewalk notwithstanding its partial barricade. For these reasons, we cannot say, as a matter of law, that defendant should not have reasonably anticipated the distraction and should not have foreseen the injury to plaintiff. It would have been easy for the defendant to have barricaded the entire walkway so that no one could use it until the construction was complete and the consequences of doing so would not have placed any great burden on the defendant.
Accordingly, the Court held that the City of Chicago owed the plaintiff a duty of care and the determination of whether liability existed was an issue of fact properly decided by a jury, rather than an issue of law to be determined by the trial court. Thus the plaintiff’s personal injury lawsuit against the City of Chicago was permitted to move forward.