Bruns v. City of Centralia

2014 IL 116998

                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                    (Docket No. 116998)

          VIRGINIA BRUNS, Appellee, v. THE CITY OF CENTRALIA, Appellant.



                              Opinion filed September 18, 2014.



        JUSTICE THEIS delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
     Burke concurred in the judgment and opinion.



                                             OPINION

¶1       Plaintiff, Virginia Bruns, filed a negligence action in Marion County against
     defendant, the City of Centralia (City), after she tripped and fell on an uneven sidewalk,
     sustaining personal injuries. The City moved for summary judgment, arguing that the
     defect was “open and obvious,” and the City was under no duty to protect plaintiff from
     the defective sidewalk. Plaintiff argued that the “distraction exception” to the open and
     obvious rule applied, and the City owed her a duty of reasonable care. The trial court
     granted the City’s motion for summary judgment. The appellate court reversed and
     remanded for further proceedings. 

2013 IL App (5th) 130094

.

¶2       For the reasons that follow, we reverse the judgment of the appellate court and
     affirm the judgment of the trial court.
¶3                                      BACKGROUND

¶4       The following facts are not in dispute. On March 27, 2012, plaintiff, then just a few
     days away from her eightieth birthday, drove to an eye clinic located on 2nd Street in
     Centralia for a scheduled appointment. Plaintiff did not use the clinic’s parking lot.
     Instead, she parked her car on 2nd Street in front of the clinic, just as she had on each of
     her nine visits to the clinic during the preceding three months. As she walked toward
     the clinic, plaintiff stubbed her toe on a crack in the sidewalk, causing her to fall and
     injure her arm, leg and knee. At the time of the fall, plaintiff was looking “towards the
     door and the steps” of the clinic. Plaintiff “definitely” noticed the defect in the sidewalk
     every time she went to the clinic, and was sure she noticed it on March 27. According
     to plaintiff, “you couldn’t help but not [sic] notice it.”

¶5       The defect at issue, which developed over a period of several years, was on the
     stretch of sidewalk that runs from the street to the main sidewalk in front of the clinic.
     Roots from a nearby tree caused the sidewalk to crack and become uneven. Sometime
     prior to 2009, a clinic employee had contacted the City about the defect, and offered to
     remove the tree at the clinic’s expense. The City would not authorize removal because
     of the 100-year-old tree’s historic significance. In 2009, a clinic employee again
     contacted the City after learning that someone had tripped and fallen on the sidewalk.

¶6       In her complaint, plaintiff alleged that the City negligently maintained the
     sidewalk, failed to inspect and repair the sidewalk, and permitted the sidewalk to
     remain in a dangerous condition. The City filed a motion for summary judgment,
     arguing that the nature of the defect was not in dispute, and that the defect was open and
     obvious as a matter of law. The City maintained that it was not required to foresee and
     protect against injuries from a potentially dangerous condition that was open and
     obvious.

¶7       Plaintiff countered that merely labelling the sidewalk defect “open and obvious”
     would not necessarily bar recovery because the City should have reasonably foreseen
     that a pedestrian, like plaintiff, could become distracted and fail to protect herself
     against the dangerous condition. The nature of the distraction on which plaintiff relied
     was explored during argument on the City’s motion:

                “MR. PRICE [Plaintiff’s counsel]: *** She [plaintiff] is very clear that at
            the time this happened she was looking up at the [clinic] door. And that is a
            reasonable thing for her to do and a reasonable thing for someone to expect
            someone to do. ***
                                              -2-
                 THE COURT: The only distraction present in this case was the fact that
              your client was looking at the door; right? Isn’t that correct?

                  MR. PRICE: Yes, sir.”

¶8         The trial court granted the City’s motion for summary judgment, finding the
       sidewalk defect was open and obvious as a matter of law, and rejecting plaintiff’s
       argument that the distraction exception applied under the facts of this case. The trial
       court opined that under plaintiff’s argument, “the mere existence of an entrance, and/or
       steps leading up to it, would provide a universal distraction exception to the open and
       obvious doctrine.” Such an expansion of negligence law, the trial court noted, was
       beyond its authority.

¶9         On appeal, the parties agreed that the sidewalk defect was open and obvious as a
       matter of law, but disagreed as to the applicability of the distraction exception. 

2013 IL App (5th) 130094, ¶ 7

. According to the appellate court, “the key question is the
       foreseeability of the likelihood that an individual’s attention may be distracted from the
       open and obvious condition” (id. ¶ 11), and “[i]t is certainly reasonable to foresee that
       an elderly patron of an eye clinic might have his or her attention focused on the
       pathway forward to the door and steps of the clinic as opposed to the path immediately
       underfoot” (id. ¶ 12). The appellate court concluded that the City had a duty to remedy
       the sidewalk defect in a reasonable time frame, but whether the City breached this duty
       was a fact question for the jury. Id. ¶ 13. The appellate court thus reversed and
       remanded for further proceedings. Id. ¶ 14.

¶ 10      We allowed the City’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. July 1,
       2013)), and allowed the Illinois Municipal League and the Illinois Association of
       Defense Trial Counsel to file briefs amicus curiae in support of the City (Ill. S. Ct. R.
       345 (eff. Sept. 20, 2010)).



¶ 11                                          ANALYSIS

¶ 12       Summary judgment is a drastic means of disposing of litigation (Williams v.
       Manchester, 

228 Ill. 2d 404, 417

 (2008)), and is appropriate only where “the 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.” 735 ILCS 5/2-1005(c) (West 2012). In order to survive a
       motion for summary judgment, a plaintiff need not prove her case, but she must present
                                               -3-
       a factual basis that would arguably entitle her to a judgment. Robidoux v. Oliphant, 

201 Ill. 2d 324, 335

 (2002); see also Prostran v. City of Chicago, 

349 Ill. App. 3d 81, 85

       (2004) (plaintiff in summary judgment proceeding must present some evidence to
       support each element of the cause of action). In a negligence action, the plaintiff must
       plead and prove the existence of a duty owed by the defendant to the plaintiff, a breach
       of that duty, and injury proximately resulting from the breach. Choate v. Indiana
       Harbor Belt R.R. Co., 

2012 IL 112948, ¶ 22

.

¶ 13       Here, the underlying facts are not in dispute. The only issue is whether, under those
       facts, the City owed a duty to plaintiff. Whether a duty exists is a question of law for the
       court to decide. Forsythe v. Clark USA, Inc., 

224 Ill. 2d 274, 280

 (2007). “In the
       absence of a showing from which the court could infer the existence of a duty, no
       recovery by the plaintiff is possible as a matter of law and summary judgment in favor
       of the defendant is proper.” Vesey v. Chicago Housing Authority, 

145 Ill. 2d 404, 411

       (1991). We review summary judgment rulings de novo. Williams, 

228 Ill. 2d at 417

.

¶ 14       In resolving whether a duty exists, we ask “whether defendant and plaintiff stood in
       such a relationship to one another that the law imposed upon defendant an obligation of
       reasonable conduct for the benefit of plaintiff.” Ward v. K mart Corp., 

136 Ill. 2d 132, 140

 (1990). Four factors guide our duty analysis: (1) the reasonable foreseeability of
       the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding
       against the injury, and (4) the consequences of placing that burden on the defendant.
       Simpkins v. CSX Transportation, Inc., 

2012 IL 110662, ¶ 18

; LaFever v. Kemlite Co.,
       

185 Ill. 2d 380, 389

 (1998). The weight to be accorded these factors depends upon the
       circumstances of a given case. Simpkins, 

2012 IL 110662

, ¶ 18.

¶ 15       Under section 3-102 of the Local Governmental and Governmental Employees
       Tort Immunity Act, a local public entity, like the City here, “has the duty to exercise
       ordinary care to maintain its property in a reasonably safe condition.” 745 ILCS
       10/3-102 (West 2012). The Tort Immunity Act did not create this duty; it merely
       codified the duty that existed at common law. Bubb v. Springfield School District 186,
       

167 Ill. 2d 372, 377-78

 (1995). Thus, in determining whether the City’s general duty of
       care set forth in section 3-102 extended to the risk at issue in this case—the defective
       sidewalk—we look to the common law. See Vesey, 

145 Ill. 2d at 414

. 1

           1
             Although the City does not argue that it is immune from liability under the Tort Immunity Act, the
       Illinois Municipal League presses this argument. An amicus, however, “takes the case as it finds it, with
       the issues framed by the parties.” (Internal quotation marks omitted.) Karas v. Strevell, 

227 Ill. 2d 440, 450-51

 (2008). Thus, we have consistently rejected attempts by amici to raise issues not raised by the
                                                       -4-
¶ 16       One common law construct relevant here is the “open and obvious rule.” Generally,
       under this rule, “a party who owns or controls land is not required to foresee and protect
       against an injury if the potentially dangerous condition is open and obvious.” Rexroad
       v. City of Springfield, 

207 Ill. 2d 33, 44

 (2003). The open and obvious rule is also
       reflected in section 343A of the Restatement (Second) of Torts, which this court has
       adopted. See Deibert v. Bauer Brothers Construction Co., 

141 Ill. 2d 430, 434-36

       (1990). Under section 343A, 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.” Restatement (Second) of Torts § 343A, at 218 (1965).
       “Obvious” means that “both the condition and the risk are apparent to and would be
       recognized by a reasonable man, in the position of the visitor, exercising ordinary
       perception, intelligence, and judgment.” Restatement (Second) of Torts § 343A cmt. b,
       at 219 (1965). As explained by this court:

                “In cases involving obvious and common conditions, such as fire, height, and
                bodies of water, the law generally assumes that persons who encounter these
                conditions will take care to avoid any danger inherent in such condition. The
                open and obvious nature of the condition itself gives caution and therefore the
                risk of harm is considered slight; people are expected to appreciate and avoid
                obvious risks.” Bucheleres v. Chicago Park District, 

171 Ill. 2d 435, 448

                (1996).

¶ 17       The open and obvious rule is not confined to common conditions such as fire,
       height and bodies of water. Other conditions, including sidewalk defects, may also
       constitute open and obvious dangers. E.g., Rexroad, 

207 Ill. 2d at 36, 46

 (hole in
       parking lot adjacent to high school football field); American National Bank & Trust
       Co. of Chicago v. National Advertising Co., 

149 Ill. 2d 14, 25, 27-28

 (1992) (high
       voltage power line in close proximity to walkway on billboard); Deibert, 

141 Ill. 2d at 438

 (rut on construction site directly outside portable bathroom); Ward, 

136 Ill. 2d at 136, 152-53

 (five-foot concrete post located outside entrance to retail store); Sandoval
       v. City of Chicago, 

357 Ill. App. 3d 1023, 1029

 (2005) (defective sidewalk in front of
       the plaintiff’s home).




       parties. 

Id.

 We note, in any event, that “only if a duty is found is the issue of whether an immunity or
       defense is available to the governmental entity considered.” Zimmerman v. Village of Skokie, 

183 Ill. 2d 30, 46

 (1998). For these reasons, we decline to consider the immunity issue raised by the Illinois
       Municipal League.
                                                      -5-
¶ 18       Whether a dangerous condition is open and obvious may present a question of fact.
       American National Bank, 

149 Ill. 2d at 27

. But where no dispute exists as to the
       physical nature of the condition, whether the dangerous condition is open and obvious
       is a question of law. Choate, 

2012 IL 112948, ¶ 34

. Here, the nature of the sidewalk
       defect was well documented and was not in dispute. Based on the nature of the defect,
       the trial court held, and the parties agreed, that the defect was open and obvious as a
       matter of law. 

2013 IL App (5th) 130094

, ¶ 7.

¶ 19        The existence of an open and obvious danger is not an automatic or per se bar to the
       finding of a legal duty on the part of a defendant. Jackson v. TLC Associates, Inc., 

185 Ill. 2d 418, 425

 (1998). “In assessing whether a duty is owed, the court must still apply
       traditional duty analysis to the particular facts of the case.” 

Id.

 Accord Sollami v.
       Eaton, 

201 Ill. 2d 1, 17

 (2002); Bucheleres, 

171 Ill. 2d at 456

. Application of the open
       and obvious rule affects the first two factors of the duty analysis: the foreseeability of
       injury, and the likelihood of injury. 

Id.

 Where the condition is open and obvious, the
       foreseeability of harm and the likelihood of injury will be slight, thus weighing against
       the imposition of a duty. 

Id. at 456-57

.

¶ 20        In this case, in addition to the open and obvious rule, our duty analysis must also
       consider whether, as the appellate court held, an exception to the open and obvious rule
       applies. Exceptions to the rule make provision for cases in which “the possessor of land
       can and should anticipate that the dangerous condition will cause physical harm to the
       invitee notwithstanding its known or obvious danger.” Restatement (Second) of Torts §
       343A cmt. f, at 220 (1965). Illinois law recognizes two such exceptions: the
       “distraction exception,” and the “deliberate encounter exception.” Sollami, 

201 Ill. 2d at 15

; LaFever, 

185 Ill. 2d at 391

. The distraction exception applies “ ‘where the
       possessor [of land] 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.’ ” Sollami, 

201 Ill. 2d at 15

 (quoting Restatement
       (Second) of Torts § 343A cmt. f, at 220 (1965)). The deliberate encounter exception
       applies “ ‘where the possessor [of land] 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.’ ” Id. (quoting
       Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)). Where an exception to
       the open and obvious rule applies, the outcome of the duty analysis with respect the
       first two factors is “reversed.” Belluomini v. Stratford Green Condominium Ass’n, 

346 Ill. App. 3d 687, 692

 (2004). Whereas operation of the open and obvious rule

                                               -6-
       negatively impacts the foreseeability and likelihood of injury, application of an
       exception to the rule positively impacts the foreseeability and likelihood of injury.

¶ 21       In the instant case, the appellate court agreed with plaintiff that the distraction
       exception applies, and that the City owed plaintiff a duty of reasonable care to protect
       her from the sidewalk defect, notwithstanding its open and obvious nature. 

2013 IL App (5th) 130094, ¶¶ 10-13

. The City urges us to reverse the appellate court, arguing
       that the distraction exception is inapplicable for the simple reason that plaintiff was not
       distracted. According to the City, the mere fact that plaintiff fixed her attention on the
       door of the clinic does not constitute a distraction. Plaintiff counters that this case
       presents a “classic example” of the distraction exception. Plaintiff explains that people
       do not ordinarily look downward when they walk, and the City should have anticipated
       that a person approaching the clinic would look at the door and steps.

¶ 22       Preliminarily, we note that the distraction exception will only apply where
       evidence exists from which a court can infer that plaintiff was actually distracted. See
       Sollami, 

201 Ill. 2d at 16-17

 (distraction exception did not apply to open and obvious
       danger of “rocket-jumping” on trampoline because no evidence was presented tending
       to show that the plaintiff was distracted); Bucheleres, 

171 Ill. 2d at 452-53

 (declining to
       apply distraction exception where the “record does not indicate that plaintiffs in the
       instant cases were distracted or forgetful of the lake’s existence when they decided to
       dive off the seawalls”). Accord Belluomini, 

346 Ill. App. 3d at 695

; True v. Greenwood
       Manor West, Inc., 

316 Ill. App. 3d 676, 680

 (2000). Here, the only distraction
       identified by plaintiff is that her attention was fixed on the door and steps of the clinic.
       Although the record supports that plaintiff was, in fact, looking in that direction, rather
       than at the defective sidewalk, we conclude that the mere fact of looking elsewhere
       does not constitute a distraction.

¶ 23       This court has not adopted a precise definition of what constitutes a “distraction”
       for purposes of the distraction exception to the open and obvious rule. A review of our
       case law, in which we have found the distraction exception applicable, provides a basis
       for some general observations about the nature of a distraction.

¶ 24       In Ward, the plaintiff was injured when he collided with a five-foot tall concrete
       post located outside a customer entrance to a retail store operated by the defendant. At
       the time of the collision, the plaintiff was carrying a large mirror he had just purchased.
       We held that the distraction exception applied because the defendant should have
       anticipated that a customer, even in the exercise of reasonable care, would become

                                                -7-
       distracted by carrying large bulky items from the store. Ward, 

136 Ill. 2d at 153-54

. In
       so concluding, we also found relevant the following circumstances: the concrete posts
       could not be seen from the interior of the store; the posts were located immediately
       outside the doors; another means of egress was unavailable to the plaintiff; and the
       mirror obscured the plaintiff’s view of the post. 

Id. at 154

.

¶ 25       In Deibert, the plaintiff was injured at a construction site when he stumbled on one
       of several deep tire ruts as he exited a portable bathroom that was located between two
       multistory buildings that were under construction. When he exited the bathroom, the
       plaintiff was looking up because workers had previously thrown construction material
       off a balcony located near and above the portable bathroom. Under these facts, we
       concluded that although the tire ruts were open and obvious, the distraction exception
       applied. Deibert, 

141 Ill. 2d at 439

. We observed that the defendant, as the general
       contractor, created the hazard that caused the distraction by allowing debris to be
       thrown off the balcony, and that the plaintiff could not look both up, to check for
       debris, and down, to protect himself from tripping on the tire rut. 

Id.

¶ 26       In American National Bank, a billboard painter was electrocuted when he came into
       contact with a high-voltage power line that hung only 4½ to 5 feet above the walkrail
       that ran the length of the billboard. Although the power line constituted an open and
       obvious danger (American National Bank, 

149 Ill. 2d at 28

), we held that the distraction
       exception applied (id. at 29). The defendant could reasonably foresee that a worker
       would become distracted by having to watch where to place his feet on the walkrail. 

Id.

       The worker “could not simultaneously look down at his feet and up at the overhead
       power line.” 

Id.

¶ 27       Finally, in Rexroad, a high school student was injured when he stepped into an
       open and obvious hole in a parking lot adjacent to the football field. The plaintiff, who
       was working as a manager for the football team during preseason practice, had been
       instructed by one of the coaches to retrieve a helmet from the locker room, located in
       the gymnasium to the north of the practice field. The plaintiff exited the practice field
       through gate B, which was the most direct route to the locker room, and which did not
       lead to the vicinity of the hole. Upon his return, however, gate B was locked, and the
       plaintiff headed back to the field by using gate A, which led him to the area of the hole.
       At the time of his injury, the plaintiff was focused on carrying the helmet to the player,
       as he had been instructed to do. We found this case similar to the Ward case, and that
       the distraction exception applied because the defendants (the municipality and the


                                               -8-
       school board) could reasonably foresee that a student, under these circumstances,
       would fail to avoid the risk of the hole. Rexroad, 

207 Ill. 2d at 46

.

¶ 28       In each of these cases, some circumstance was present that required the plaintiff to
       divert his or her attention from the open and obvious danger, or otherwise prevented
       him or her from avoiding the risk. In Ward, the plaintiff was distracted by carrying
       bulky merchandise from the defendant’s store, using the only means of egress available
       that led him to the concrete post. Similarly, in Rexroad, the plaintiff was distracted by
       the task he was directed to perform—retrieving a helmet—and was required to use a
       different route on his return trip that brought him into the area of the hole. In Deibert
       and American National Bank, the plaintiffs were distracted by concern for their own
       safety—protecting against falling debris, and protecting against a misstep on the
       billboard walkrail, respectively.

¶ 29       Each of the foregoing cases also made clear that the distraction was reasonably
       foreseeable by the defendant. In Ward, the defendant sold the plaintiff the
       vision-obscuring merchandise and was keenly aware of the placement of the post
       directly outside the doors. In Rexroad, the municipality and the school board could
       reasonably foresee that a student worker, required to traverse the parking lot where the
       hole was located, could become distracted by the task he was directed to perform. In
       Deibert, the defendant created the distraction. And in American National Bank, the
       defendant could foresee that a worker’s need to watch his footing on the walkrail would
       distract him from the overhead power line.

¶ 30       In contrast to these cases, the plaintiff has failed to identify any circumstance, much
       less a circumstance that was reasonably foreseeable by the City, which required her to
       divert her attention from the open and obvious sidewalk defect, or otherwise prevented
       her from avoiding the sidewalk defect. The only circumstance upon which plaintiff
       relies is the fact that, at the time she tripped, she was looking not at the sidewalk, but
       “towards the door and the steps” of the clinic. The issue, however, is not whether
       plaintiff was looking elsewhere, but why she was looking elsewhere. Plaintiff did not
       focus her attention on the door and steps of the clinic in order to avoid another hazard
       or potential hazard like the plaintiffs in Deibert and American National Bank. Nor did
       plaintiff fail to avoid the sidewalk defect because some other task at hand required her
       attention, like the plaintiffs in Ward and Rexroad. Thus, the present case shares none of
       the characteristics of the cases in which we have held the distraction exception applies.



                                                -9-
¶ 31        To the extent that looking elsewhere could, itself, be deemed a distraction, then it
       is, at most, a self-made distraction. But as our appellate court explained:

              “A plaintiff should not be allowed to recover for self-created distractions that a
              defendant could never reasonably foresee. In 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. The law cannot require a possessor of land to
              anticipate and protect against a situation that will only occur in the distracted
              mind of his invitee.” Whittleman v. Olin Corp., 

358 Ill. App. 3d 813, 817-18

              (2005).

¶ 32   See also Restatement (Second) of Torts § 343A cmt. e, illus. 1, at 220 (1965)
       (commenting that no liability would lie for a customer’s injury from an encounter with
       open and obvious plate glass door where the customer was “preoccupied with his own
       thoughts”).

¶ 33       Plaintiff argues that looking ahead at the door and steps of the clinic was reasonably
       foreseeable by the City because people do not continually look downward as they walk,
       and the distraction exception should thus apply. Plaintiff relies on Buchaklian v. Lake
       County Family Young Men’s Christian Ass’n, 

314 Ill. App. 3d 195

 (2000), but
       Buchaklian does not support application of the distraction exception in this case. In
       Buchaklian, the appellate court “refuse[d] to hold that invitees, as a matter of law, are
       required to look constantly downward.” 

Id. at 202

. The appellate court made this
       statement not in the context of applying the distraction exception, but in the context of
       deciding whether the condition at issue—a raised portion of a floor mat in the shower
       area of a YMCA—was open and obvious in the first place. 

Id.

 Thus, Buchaklian does
       not speak to the issue before us.

¶ 34        We note that the concept of foreseeability is not boundless. That something “might
       conceivably occur,” does not make it foreseeable. (Internal quotation marks omitted.)
       Hills v. Bridgeview Little League Ass’n, 

195 Ill. 2d 210, 238

 (2000). Rather, something
       is foreseeable only if it is “objectively reasonable to expect.” (Internal quotation marks
       omitted.) 

Id.

 In the absence of evidence of an actual distraction, we disagree with
       plaintiff that it was objectively reasonable for the City to expect that a pedestrian,
       generally exercising reasonable care for her own safety, would look elsewhere and fail
       to avoid the risk of injury from an open and obvious sidewalk defect. The plaintiff’s
       position is contrary to the very essence of the open and obvious rule: because the risks

                                               - 10 -
       are obvious, the defendant “ ‘could not reasonably be expected to anticipate that people
       will fail to protect themselves from any danger posed by the condition.’ ” Bucheleres,
       

171 Ill. 2d at 448

 (quoting Ward, 

136 Ill. 2d at 148

). Were we to conclude, as plaintiff
       does, that simply looking elsewhere constitutes a legal distraction, then the open and
       obvious rule would be upended and the distraction exception would swallow the rule.

¶ 35       We hold, contrary to the appellate court, that the distraction exception to the open
       and obvious rule does not apply under the facts of this case. Whether the appellate court
       erred in reversing the trial court’s grant of summary judgment, however, requires
       further analysis. “Determining that the open and obvious doctrine applies does not end
       the inquiry regarding duty in a negligence case.” Sollami, 

201 Ill. 2d at 17

. We must yet
       consider the four factors that inform our duty analysis: (1) the reasonable foreseeability
       of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of
       guarding against the injury, and (4) the consequences of placing that burden on the
       defendant. 

Id.

¶ 36       The first factor carries little weight because a defendant is ordinarily not required to
       foresee injury from a dangerous condition that is open and obvious. Bucheleres, 

171 Ill. 2d at 447-48

. The second factor also carries little weight because “it is assumed that
       persons encountering the potentially dangerous condition of the land will appreciate
       and avoid the risks,” making the likelihood of injury slight. Sollami, 

201 Ill. 2d at 17

.

¶ 37       As to the third and fourth factors, we observe that the financial or other burden on
       the City of repairing this particular stretch of sidewalk, or otherwise protecting
       pedestrians from the sidewalk defect, is not contained in the record before us. But even
       if we assume that such burden is not great, the consequences of imposing that burden
       on the City would go well beyond the instant sidewalk defect. The City has miles of
       sidewalk to maintain. The imposition of this burden is not justified given the open and
       obvious nature of the risk involved. See Sollami, 

201 Ill. 2d at 18

. Accordingly, we
       hold that the City had no duty to protect plaintiff from the open and obvious sidewalk
       defect. We, therefore, reverse the judgment of the appellate court, and affirm the
       judgment of the trial court granting summary judgment to the City.



¶ 38      Appellate court judgment reversed.

¶ 39      Circuit court judgment affirmed.


                                                - 11 -