Zumbahlen v. Morris Community High School

JUSTICE STOUDER delivered the opinion of the court: This appeal arises from a summary judgment order entered against the plaintiff, Merida Zumbahlen, who sustained injuries while attending a football game on the property of the defendant, Morris Community High School, District No. 101. The facts are not in dispute. On October 16, 1986, the plaintiff was on the defendant’s premises to attend a football game. She went to the ticket booth to get a ticket and upon leaving that area caught her heel on the edge of a concrete parking curb, causing her to trip and fall. There were a number of children running around the area, and the plaintiff had to weave around them to avoid being run into. The plaintiff admitted, however, that she knew the curb was there and in fact was trying to be careful around it. The plaintiff’s complaint alleged that the defendant was negligent for failing to exercise reasonable care in providing her with a safe place to walk and in failing to warn her that a concrete curb was in the vicinity. The defendant filed a motion for summary judgment, alleging that it did not have a duty to warn the plaintiff since she knew of the existence of the curb. The trial court granted the motion, finding that the plaintiff’s complaint failed to raise a genuine issue of material fact. On appeal, the plaintiff argues that the trial court erred in finding as a matter of law that the defendant did not have a duty to warn her about the curb. Summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).) To survive a motion to dismiss in a negligence action, the complaint must allege facts from which the law will raise a duty. Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999, 513 N.E.2d 1026. In Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, the Illinois Supreme Court recently addressed the issue of the existence of a duty in cases of known or obvious risks. In Ward, the court stated that the “ ‘obviousness’ of a condition or the fact that the injured party may have been in some sense ‘aware’ of it may not always serve as adequate warning of the condition and of the consequences of encountering it.” (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 148-49, 554 N.E.2d 223, 230.) “If the defendant may reasonably be expected to anticipate that even those [entrants] in the general exercise of ordinary care will fail to avoid the risk because they are distracted or momentarily forgetful, then his duty may extend to the risk posed by the condition. Whether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact.” (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 156, 554 N.E.2d 223, 234.) “Attempting to dispose of litigation by merely invoking such relative and imprecise characterizations as ‘known’ or ‘obvious’ is certainly no adequate substitute for assessing the scope of the defendant’s duty under the circumstances ***.” Ward v. K mart Corp. (1990), 136 Ill. 2d 132,147-48, 554 N.E.2d 223, 230. In light of Ward, we believe there existed a genuine issue of material fact in the instant case. For this reason, the judgment of the circuit court of Grundy County is reversed and the cause remanded for further proceedings consistent with the holding in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223. Reversed and remanded. BARRY, J., concurs.