Bethany Krajelis Jan. 31, 2014, 12:14pm

The Illinois Supreme Court will soon hear arguments in a downstate personal injury suit stemming from an elderly woman’s fall over a public sidewalk known to be in a dangerous condition.

This case -- Virginia Bruns v. The City of Centralia, etc.-- is one of 11 the justices earlier this week allowed petitions for leave to appeal in. Five of the 11 cases deal with civil issues while the rest are criminal in nature.

In the personal injury suit, the Supreme Court will have to decide whether the Fifth District Appellate Court was right to reverse the lower court’s entry of summary judgment in favor of the defendant.

The circuit judge, in reaching his since-reversed decision over the “distraction” exception to the open and obvious rule regarding foreseeability of injury, expressed his belief that ruling the other way would mark an expansion of negligence law.

The issue over duty of care comes from a lawsuit Virginia Bruns brought against the City of Centralia for personal injuries she sustained on March 27, 2012, when she tripped over a raised section of a sidewalk on her way into an eye clinic.

Bruns, who was 80 at the time, claimed the sidewalk was raised about three inches above adjacent concrete slabs and grass due to a crack from the root system of a large tree, a condition that allegedly caused another person to trip the year before.

According to the appellate court opinion, Bruns was not looking down at the sidewalk when she fell as she had her eyes on the clinic’s entrance. Not noticing the crack, Bruns stubbed her foot on it and fell, injuring her shoulder and arm.

Centralia Eye Clinic, which now does business as Eyecare Management LLC, had previously reported the sidewalk’s condition to the city, according to the opinion that goes on to note the clinic at one point even offered to have the tree removed at its own expense.

Despite being notified about the sidewalk’s condition, the opinion states the City’s tree committee refused to have the tree removed because of its historic significance.

Marion County Circuit Judge Michael D. McHaney determined the condition of the sidewalk Bruns fell over was open and obvious, but held the distraction exception inapplicable to her situation.

The distraction exception typically applies when there is a reason to expect a plaintiff’s attention would be distracted from an open and obvious condition based on circumstances requiring her to focus elsewhere.

In entering summary judgment in the city’s favor, McHaney stated “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 Illinois negligence law must only come from the legislature or a higher court.”

An appeals panel consisting of Justices Judy Cates, Thomas Welch and Bruce Stewart, however, reversed McHaney’s ruling in September and remanded the matter back to the circuit court, saying whether the city breached its duty of reasonable care to Bruns was a question of fact for a jury to decide.

McHaney, the panel’s opinion states, concluded that in order for the distraction exception to apply, “the City had to have created, contributed to, or was responsible in some way for the distraction which diverted plaintiff’s attention from the open and obvious condition, thereby charging the City with the reasonable foreseeability that an injury might occur.”

But, Cates wrote for the court in a six-page opinion in the case, “the key question is the foreseeability of the likelihood that an individual’s attention may be distracted from the open and obvious condition, not the creation of the distraction.”

“The fact that this condition occurred over several years and that the City had knowledge of the danger does not allow the City to bury its head in the sand and ignore the real danger posed by the uneven sidewalk,” Cates wrote. “Moreover, it is not necessary for a defendant to foresee the precise nature of the distraction.”

Centralia attorney Daniel R. Price of Wham & Wham represented Bruns at the appellate court level, where Brian M. Funk of O’Halloran, Kosoff, Geitner & Cook in Northbrook represented the city.

The Supreme Court also agreed to hear arguments in the following civil matters:

  • State of Illinois ex rel. Joseph Pusateri v. The Peoples Gas Light and Coke Co., etc. (First District), a case in which the appellate court reversed the dismissal of the plaintiff’s complaint under the Whistleblower Reward and Protection Act. The panel held the plaintiff’s complaint alleging that People’s Gas falsified gas leak response reports could have led state regulators to approve a rate increase under false tenses states a cause of action under the act.

  • Steven A. Skaperdas et al., etc., v. Country Casualty Insurance Co. (Fourth District), a case in which the appeals panel reversed the lower court’s finding that the defendant didn’t owe a duty of care to the plaintiff in obtaining coverage because he was an agent, not a broker. The panel held there is no distinction between agents and brokers when it comes to duty of care in the Illinois Insurance Placement Liability Act.

  • Carolyn Bettis, v. Charles M. Marsaglia et al., etc. (Fourth District), a case in which the appellate court affirmed the dismissal of the plaintiff’s complaint seeking administrative review of an electoral board decision that sustained objections to petitions over a voter proposition.

  • Mary Slepicka, etc., v. The State of Illinois, etc., et al. (Fourth District), a case in which the appeals panel vacated the lower court ruling upholding the Department of Public Health’s approval to grant the involuntary transfer/discharge a nursing home resident and remanded with directions to transfer the matter to the Cook County Circuit Court.

In addition, the justices allowed petitions for leave to appeal in People v. Antonio Almond (First District); People v. Keith W. LeFlore (Second District); People v. Barbara J. Chenoweth (Fourth District) People v. Steven Castleberry (First District); and People v. Mary M. Holt (Second District).

It is unclear when the court will hear arguments in these cases. Its next term is in March.

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