SUMMARY JUDGEMENT REVERSED WHERE THREE-QUARTER INCH RISE IN CONCRETE WAS NOT OPEN AND OBVIOUS
DUE TO LIGHTING CONDITIONS AND DE MINIMUS RULE DID NOT APPLY
In Alqadhi v. Standard Parking, Inc., 405 Ill.App.3d 14, 938 N.E.2d 584, 1st Dist (2010), Plaintiff was injured when she tripped in Defendant's parking garage over a three-quarter inch rise in concrete near a wheelchair acessible ramp. Plaintiff claimed that the deviation in height was not properly marked and created a hazardous condition. After summary judgment, the Appellate Court reversed in favor of the Plaintiff.
Defendant claimed that no forseeable risk was created by the raised concrete and that the confition causing Plaintiff's injury was open and obvious. Plaintiff testified that the raised concrete created an optical illusion of a flat walking surface due to dimly lit conditions. She described the lighting near the step as being "low, dim, dark, and bad." Due to the fact that the building was relatively new, yellow lines of demarcation had not yet been painted arounf the ram. Id. at 938 N.E.2d 586.
Plaintiff's engineer evaluated the area and acknowledged that the ramp was imprinted with a cross-hatched diamond pattern designed to warn pedestrians and was in compliance with the Americans With Disabilities Act. He opined that the lack of contrast between the surfaces disguised the abrupt change in vertical elevation. Further that the condition was not obvious and that contrast paint was essential for purposes of safety. His affidavit stated that in his opinion, the failure to mark the curb with contrast paint was a proximate cause of Plaintiff's injury.
In reversing summary judgement, the Appellate Court noted that wheter a condition is open and obvious is usually a legal question for the court. However, where there is some dispute about the condition's phsyical mature, susch as its visibility, the question as to whether the condition is open and obvious is a factual one citing Wilfong v. L.J. Dodd Construction, 930 N.2d 511 (2010) and Bellvomini v. Stratford Green Condominum 805 N.E.2d 701 (2004).
The Appellate Court disagreed with the lower court and reversed summary judgment based upon the testimony of Plaintiff's expert. The court stated that the Plaintiff's engineer's opinions supported Plaintiff's observations that the lighting conditions and coloring of the curb caused an optical illusion that in the opinion of the expert "disguised" the change in vertical elevation. The court found that it coulf not characterize the case as one where the was no dispute about the physical nature of the condition. 838 N.E.2d 588. That the condition was thus not obvious, leaving the court to find that there was indeed a question of fact.
Relative to the Defendant's argumnet that the three-quarter inch deviation was "De Minimus" The court noted that a minor defect may ne actionable where there are other aggrivating factors, such as heavy traffic because of pedestrians may be actionable where there are other aggravating factors, such as heavy traffic because pedestrians may be dostracted and must be constantly alert to avoid bumping into each other. It notes that in case at bar, both the Plaintiff and her expert tetified to impaired visability which concealed the otherwise minor defect. The court found the testimony to be sufficient to remove the case from application of the open and obvious doctrine and the De Minimus Rule. Aliqadhi v. Standard Parking, Inc. 405 Ill.App.3d 14, 938 N.E.2d 584, 1st Dist (2010).
Justice Robert E. Gordon specially concurred writing that "When a court cannot conclude as a matter of law that a condition posed an open and obvious danger, then 'the obviousness' is for the jury to determine." He further noted that here as in Duffy v. Togher, 887 N.E.2d 535 (2008) expert aided in creating a factual issue. Id.