The distraction exception explained: Virginia Bruns v. the City of Centralia
What exactly is the distraction exception? Does it have anything to do with distracted driving? Does it have anything to do with all those young people we see walking into each other on the street while texting each other on their smart phones? Does it mean that if a plaintiff is distracted by something that prevents her from seeing where she is going, she is able to recover when she trips over an open and obvious hazard?
The Illinois Supreme Court clarified when the distraction exception applies to the open and obvious rule in slip and fall cases in Bruns v. City of Centralia.1 In this case, the roots of a “historical” tree caused the sidewalk to crack in front of an eye clinic on 2nd Street in Centralia. Twice the clinic contacted the City and offered to have the tree removed at the clinic’s expense, but the City refused to remove the tree due to its historical significance.
Then on March 12, 2012, plaintiff, Virginia Bruns, stubbed her toe on the defective sidewalk and fell, injuring her arm, leg, and knee. At the time she fell, Bruns was looking forward towards the door and steps of the clinic. Bruns “definitely” saw the defect each time she visited the clinic and the City of Centralia filed a motion for summary judgment on the grounds that the defect was open and obvious. The trial court granted the city’s motion for summary judgment, and the appellate court reversed and remanded.
Section 3-102 of the Local Government and Governmental Employees Tort Immunity Act2 dictates that municipalities have a duty to “exercise ordinary care to maintain its property in a reasonably safe condition.” Yet under the “open and obvious rule,” a locality does not have such a duty if the dangerous condition is open and obvious. Rather, people are expected to appreciate and avoid open and obvious conditions that are potentially dangerous.
However, the open and obvious rule does not totally eliminate the duty to maintain property when conditions are very apparent. The “distraction exception” re-establishes the duty to maintain “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.”3 In other words, while people are expected to appreciate and avoid open and obvious conditions, they are not expected to do so when they are distracted by something the defendant should foresee.
But what constitutes a distraction? Speaking for a unanimous court, Justice Mary Jane Theis distinguished City of Centralia from other distraction cases decided by the Illinois Supreme Court. For example, Theis described that in Ward v. K mart Corp., the defendant K mart should have reasonably foreseen that the plaintiff leaving the store with a mirror would be distracted and unable to notice the large cement columns right outside the store exit.4 Similarly, in Diebert v. Bauer Brothers Construction Co., the plaintiff was distracted by the defendant’s workers, who had previously thrown debris at him from above.5
In American National Bank & Trust Co. of Chicago v. National Advertising Co., a painter was electrocuted on a billboard ledge by a power line because he was paying close attention to where he placed his feet.6 The Court ended by distinguishing Rexroad v. City of Springfield, where a student football manager was distracted by directions to retrieve a helmet from the locker room.7 “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.”8
Conversely, the Court explained that in City of Centralia, Bruns merely argued that she was distracted by looking forward towards the steps and door of the clinic. She argued that the City should have reasonably foreseen the potential for an accident because most people do not continuously look down as they walk.
However, the Illinois Supreme Court reversed the appellate court and held that the city could not reasonably foresee that the plaintiff would be distracted by looking forward. The court reasoned that, if it were to hold that simply looking elsewhere was enough to be legally distracted, “then the open and obvious rule would be upended and the distraction exception would swallow the rule.”9
Moreover, the Court emphasized that the issue is not whether the plaintiff had looked elsewhere, which frequently happens in slip-and-fall cases, but why she was looking elsewhere. As the opinion pointed out, Bruns was not focusing her attention on the door of the clinic to avoid another hazard, as were the plaintiffs in Deibert and American National Bank. Nor was she distracted because some other task required her attention, as was the case with the plaintiffs in Ward and Rexroad.
To this point, the Supreme Court points to the explanation given by the appellate court in another case:
A plaintiff should not be allowed to recover for self-created distractions that a defendant could never reasonably foresee. In order for the distraction exception 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.10
Justice Theis further illustrated the point with a reference from the Restatement (Second) of Torts, which observed that no liability would lie for a customer’s injury where the customer was “preoccupied with his own thoughts.”11
Today, whenever one is on a bus or a train or talking to one’s own daughter, someone seems to be preoccupied with texting or reading a text. In Bruns v. City of Centralia, the Supreme Court has made it clear that would not likely qualify for the distraction exception in the face of an open and obvious hazard. ■