Wade vs Walmart Case

Using the full case opinion of Wade v. Wal-Mart Stores, Inc. (found in the Discussion Boards Assignments Module and the Week 2 module in Learning Modules in Blackboard), set forth in your own words the facts of this case in paragraph form. The facts include everything that happened that led to the filing of the lawsuit, what the parties (Ms. Wade and Wal-Mart) did before and after the lawsuit was filed, and what the lower court decided before the case was appealed to the appellate court that wrote the case opinion. The facts can be found on pages 2 and 3 of the opinion, starting at the heading “I. Background” and ending with the words “This appeal followed.”

Illinois Official Reports
Appellate Court
Wade v. Wal-Mart Stores, Inc., 2015 IL App (4th) 141067
Appellate Court
Caption
LESLIE WADE, Plaintiff-Appellant, v. WAL-MART STORES,
INC., Defendant-Appellee.
District & No.
Fourth District
Docket No. 4-14-1067
Filed
September 24, 2015
Decision Under
Review
Appeal from the Circuit Court of Champaign County, No. 11-L-210;
the Hon. Michael Q. Jones, Judge, presiding.
Judgment
Affirmed.
Counsel on
Appeal
David R. Moore (argued), of Prillaman & Moore, Ltd., of Urbana, for
appellant.
Heather E. Shea and Elizabeth M. Bartolucci (argued), both of
O’Hagan, LLC, of Chicago, for appellee.
Panel
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Turner and Holder White concurred in the judgment and
opinion.
OPINION
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In November 2011, plaintiff, Leslie Wade, sued defendant, Wal-Mart Stores, Inc.
(Wal-Mart), for injuries she sustained in November 2009 after “trotting” into a pothole in
Wal-Mart’s parking lot. In September 2014, Wal-Mart filed a motion for summary judgment
under section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2014)),
arguing that (1) it did not owe Wade a duty because the pothole at issue was an open and
obvious hazard and (2) the distraction exception to the open and obvious doctrine did not
apply. Following a November 2014 hearing, the trial court granted summary judgment in
Wal-Mart’s favor.
Wade appeals, arguing that the trial court erred by granting summary judgment in
Wal-Mart’s favor. We disagree and affirm.
I. BACKGROUND
The following facts were gleaned from documents the parties filed with the trial court in
support of and in response to Wal-Mart’s motion for summary judgment, which included
Wade’s discovery deposition and a video recording viewed by the court. (The vantage point of
the video recording was from the roof of the store, which depicted a large portion of the
parking lot.)
On November 3, 2009, at about 6:50 p.m., Wade parked her sport-utility vehicle (SUV) in
the parking lot of the Wal-Mart store located in Savoy, Illinois. Wade exited the SUV on that
clear, dry night and, accompanied by her two children (ages eight and nine at that time),
walked through the parking lot to the store’s entrance. Wade, who wore leather boots with a
one-inch heel, acknowledged that she did not have any difficulties walking or seeing the
asphalt parking lot, which was illuminated by artificial lighting. Wade and her children then
entered the store.
At approximately 7:33 p.m., Wade and her children returned to the SUV with a cart full of
groceries. Wade described their demeanor as “laughing, being silly.” Wade again
acknowledged that she did not have any difficulties seeing the parking lot surface as she
walked to her SUV. After Wade unloaded the groceries into the SUV, she returned the empty
shopping cart to the corral, which was located five parking spaces away and in an aisle across
from Wade’s SUV. Wade then began “trotting” back to her SUV. When Wade was about six
feet away from the SUV, her left foot fell into a pothole, which caused her left knee to hit the
pavement. Wade “caught herself” with her left hand but suffered a broken foot as a result.
Because Wade was not looking down, she did not see the pothole, which she described as a
couple of feet long and a few inches deep. Wade acknowledged the possibility that if she had
been looking down as she trotted back to her SUV, she could have avoided the pothole. (The
video recording did not show Wade’s fall because her SUV blocked that portion of the
asphalt.)
In November 2011, Wade sued Wal-Mart, seeking compensation for injuries she sustained
as a result of her fall. In September 2014, Wal-Mart filed a motion for summary judgment
under section 2-1005 of the Code, arguing that (1) it did not owe Wade a duty because the
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pothole at issue was an open and obvious hazard and (2) the distraction exception to the open
and obvious doctrine did not apply. Following a November 2014 hearing, the trial court
granted summary judgment in Wal-Mart’s favor.
This appeal followed.
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II. THE TRIAL COURT’S GRANT OF SUMMARY JUDGMENT
Wade argues that the trial court erred by granting summary judgment in Wal-Mart’s favor.
Specifically, Wade contends that (1) questions of material fact existed as to whether the
pothole was an open and obvious hazard and, alternatively, (2) even if the pothole was an open
and obvious hazard, the distraction exception to the open and obvious doctrine applied. We
address Wade’s contentions in turn.
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A. The Standard of Review
Summary judgment is a drastic means of disposing of litigation 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. Bowles v. Owens-Illinois, Inc., 2013 IL App (4th)
121072, ¶ 19, 996 N.E.2d 1267. To survive a motion for summary judgment, a plaintiff need
not prove her case, but she must present a factual basis that would arguably entitle her to a
judgment. Evans v. Brown, 399 Ill. App. 3d 238, 244, 925 N.E.2d 1265, 1271 (2010). 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, 980 N.E.2d 58. “ ‘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.’ ” Bruns v. City of Centralia, 2014 IL 116998, ¶ 13, 21 N.E.3d 684 (quoting Vesey v.
Chicago Housing Authority, 145 Ill. 2d 404, 411, 583 N.E.2d 538, 541 (1991)). We review
de novo a trial court’s decision granting a motion for summary judgment. Bowles, 2013 IL App
(4th) 121072, ¶ 19, 996 N.E.2d 1267.
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B. The Open and Obvious Doctrine
The open and obvious doctrine provides that a “[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 (1965). See
Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 434, 566 N.E.2d 239, 242 (1990)
(“Illinois has adopted the rules set forth in sections 343 and 343A of the Restatement (Second)
of Torts ***.”). Section 343A of the Restatement (Second) of Torts also provides, in pertinent
part, the following clarifying guidance:
“ ‘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
(1965).
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C. Wade’s Open and Obvious Claim
Wade contends that because questions of material fact existed as to whether the pothole
was an open and obvious hazard, the trial court erred by granting summary judgment in
Wal-Mart’s favor. Specifically, Wade asserts that the “visibility of the cracked, crumbling lot
and [pot]hole should be a question of fact.” In support of her contention, Wade relies on the
following cases, which we summarize.
In American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d
14, 17-18, 594 N.E.2d 313, 314 (1992), a billboard painter was electrocuted by a high-voltage
power line that hung only 4½ to 5 feet above a walkrail that ran the length of the billboard.
American National Bank–as administrator of the decedent’s estate–brought a wrongful death
suit against the defendant. Id. at 17, 594 N.E.2d at 314. The defendant claimed that because the
high-voltage wires were an open and obvious danger, it had no duty to warn of their presence.
Id. at 26, 594 N.E.2d at 318. The trial court later granted summary judgment in the defendant’s
favor, but the appellate court reversed. Id. at 17, 594 N.E.2d at 314. The supreme court
affirmed the appellate court’s reversal, concluding, in pertinent part, as follows:
“Contrary to [the defendant’s] allegations, the Bank does not concede that the
danger of the power line was open and obvious. Both through depositions and in its
answer to defendant’s petition for leave to appeal to this court, the Bank presented
testimony by individuals who had worked on the sign that they were unaware of the
power line’s presence. Such testimony presents a question of fact as to whether or not
the danger was open and obvious.” Id. at 27, 594 N.E.2d at 319.
In Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14, 15, 938 N.E.2d 584, 586 (2010),
the plaintiff’s fall was caused by a ¾-inch-high concrete rise in the defendant’s parking garage.
The plaintiff provided an affidavit from a registered professional engineer opining that “ ‘[t]he
lack of contrast between the surface of the parking level and the curb ramp *** disguised the
abrupt change in vertical elevation.’ ” Id. at 16, 938 N.E.2d at 586. In her deposition, the
plaintiff also noted that the lighting was poor and the color similarity between the low and high
concrete surfaces “created an optical illusion of a flat walking surface.” Id. at 15, 938 N.E.2d at
586. The trial court granted summary judgment in the defendants’ favor, but the appellate court
reversed, concluding as follows:
“Normally where there is no dispute about the physical nature of the condition, the
question of whether a condition is open and obvious is a legal one for the court.
[Citation.] But, where there is a dispute about the condition’s physical nature, such as
its visibility, the question of whether a condition is open and obvious is factual.
[Citation.] Where a court cannot conclude as a matter of law that a condition poses an
open and obvious danger the obviousness of the danger is for the jury to determine.
[Citation.]” (Internal quotation marks omitted.) Id. at 17-18, 938 N.E.2d at 587-88.
In Buchaklian v. Lake County Family Young Men’s Christian Ass’n, 314 Ill. App. 3d 195,
198, 732 N.E.2d 596, 598 (2000), the plaintiff injured herself after she tripped and fell while
walking across a black floor mat. Afterward, the plaintiff noticed that “one particular piece of
the mat was standing up approximately an inch or two higher than the other portions of the
mat.” Id. During her deposition, the plaintiff admitted that she would have seen the defective
portion of the mat had she looked down. Id. The trial court granted summary judgment in the
defendant’s favor based solely on the plaintiff’s admission. Id. at 202, 732 N.E.2d at 600. The
appellate court reversed, concluding that (1) the court erred by granting summary judgment
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based solely on the plaintiff’s admission and (2) the evidence in the record could have
supported “a reasonable inference that the defect in the mat was difficult to discover because of
its size, the lack of significant color contrast between the defect and the surrounding mat, or
merely the short time that a person has in which to discover the defect.” Id. at 202, 732 N.E.2d
at 600-01.
Relying on the aforementioned cases, Wade makes the following assertion:
“As [Wade] was trotting toward the [SUV], at night, she stepped into a subtle crack
with no [discernible] color difference between the surrounding pavement and the
defect. [Wade] had not seen it before, she had no time to observe it, and it was not
readily discernible. There are, therefore, questions of material fact for the jury to
determine as to whether the condition [was] open and obvious.”
Wade’s reliance on American National Bank, Alqadhi, and Buchaklian is misplaced. Those
cases are readily distinguishable because the overarching issue in each–unlike in the instant
case–is that an actual factual dispute existed as to whether the condition was an open and
obvious hazard. See Alqadhi, 405 Ill. App. 3d at 17-18, 938 N.E.2d at 588 (if a dispute exists
concerning a condition’s physical nature, such as adequate lighting, the question of whether
the condition is open and obvious is factual).
Although Wade’s aforementioned summary implies that a dispute existed concerning the
pothole’s physical nature, the evidence presented at the November 2014 hearing on
Wal-Mart’s motion for summary judgment does not support her assertion that she trotted into a
“subtle crack with no [discernible] color difference between the surrounding pavement and the
defect.” We note that Wade also places significance on her claim that (1) she did not see the
pothole because she was not looking down and (2) if she had been looking down when she
trotted back to her SUV, she could have possibly avoided the pothole. In this regard, Wade
posits that if it is unclear whether she would have seen the pothole had she been looking down,
a material fact exists as to the openness and obviousness of the hazard. We reject any notion
that our analysis is controlled by Wade’s subjective knowledge. See Ballog v. City of Chicago,
2012 IL App (1st) 112429, ¶ 22, 980 N.E.2d 690 (“ ‘Whether a condition is open and obvious
depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective
knowledge.’ ” (quoting Prostran v. City of Chicago, 349 Ill. App. 3d 81, 86, 811 N.E.2d 364,
368 (2004))).
Simply put, we disagree with Wade’s assertion that the pleadings, depositions, affidavits,
or other documents filed in this case supported a reasonable inference that the pothole at issue
was inadequately lit, concealed, obscured, or a subtle hazard. Indeed, the undisputed evidence,
which was supported by a video recording, revealed that on a clear, dry night in November
2009, Wade was trotting through Wal-Mart’s illuminated asphalt parking lot back to her car
when she stepped into a hole that was a couple of feet long and a few inches deep. In finding
that the pothole was an open and obvious hazard, the trial court stated that Wade’s testimony
clearly established that no reason existed why she could not have seen the pothole and thus,
could have avoided the hazard if she had been looking where she was going. Because we agree
with the court’s analysis, we conclude that under the circumstances presented, a reasonable
person in Wade’s position, exercising ordinary perception, intelligence, and judgment, would
have avoided the open and obvious hazard posed by the pothole.
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D. The Distraction Exception to the Open and Obvious Doctrine
Alternatively, Wade contends that even if the pothole was an open and obvious hazard, the
distraction exception to the open and obvious doctrine applied. We disagree.
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1. The Distraction Exception to the Open and Obvious Doctrine
In Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶ 35, 28 N.E.3d 1046, this court
recently set forth the distraction exception to the open and obvious doctrine, as follows:
“The distraction exception essentially holds that even an open-and-obvious
condition may still be unreasonably dangerous if the landowner should have foreseen
that people would fail to notice or protect themselves against the condition because
they had become distracted. See Ward v. K mart Corp., 136 Ill. 2d 132, 152, 554
N.E.2d 223, 232 (1990) (‘The inquiry is whether the defendant should reasonably
anticipate injury to those entrants on his premises who are generally exercising
reasonable care for their own safety, but who may reasonably be expected to be
distracted, as when carrying large bundles, or forgetful of the condition after having
momentarily encountered it.’).” (Emphasis in original.)
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2. The Supreme Court’s Decision in Ward
Because Wade’s distraction-exception claim relies on the supreme court’s decision in
Ward, we provide a brief summary of that case.
In Ward v. K mart Corp., 136 Ill. 2d 132, 138, 554 N.E.2d 223, 225 (1990), the plaintiff
purchased a large bathroom mirror from a store the defendant operated. As the plaintiff exited
the store, he collided with one of two five-foot-tall concrete posts the plaintiff noticed when he
entered the store. Id. at 136-37, 554 N.E.2d at 225. The concrete posts, which were presumably
intended to protect the store’s facade, were 3 feet apart and located just 19 inches from the
store’s front entrance. Id. at 136, 554 N.E.2d at 225. No windows or transparent panels would
permit viewing the posts from the store’s interior. Id. at 136-37, 554 N.E.2d at 225. The
plaintiff sued the defendant to recover for injuries he sustained as a direct result of the
collision. Id. at 135, 554 N.E.2d at 224. The jury found that the defendant was liable and
returned a verdict in the plaintiff’s favor. Id. at 139, 554 N.E.2d at 226.
The supreme court upheld the jury’s verdict, reasoning that the “ ‘known’ or ‘obvious’ risk
principle” does not mean that “the duty of reasonable care owed by an owner or occupier to
those lawfully on his premises does not under any circumstances extend to conditions which
are known or obvious.” (Emphasis in original.) Id. at 145, 554 N.E.2d at 229. After applying
the traditional duty analysis, the supreme court held, as follows:
“We agree with the appellate court in the present case that the post with which
plaintiff collided is not a hidden danger. Indeed[,] plaintiff walked past the post when
entering the store and admitted he was at least ‘subconsciously’ aware of its presence.
We disagree with the appellate court’s holding, however, that ‘defendant could not
reasonably have been expected to foresee that one of its customers would block his
vision with an object which he had purchased and fail to see a five-foot-tall concrete
post located outside of an entrance to its store.’ [Citation.] We may well have arrived at
a different conclusion if the post would have been located further away from the
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entrance of the building, or if the plaintiff would not have been carrying any
vision-obscuring bundle.” Id. at 152-53, 554 N.E.2d at 232.
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3. The Trial Court’s Judgment
In finding that the distraction exception to the open and obvious doctrine did not apply to
the facts of this case, the trial court considered the same assertion that Wade raises to this
court–namely, that “[i]t is reasonable for [Wal-Mart] to anticipate, under the circumstances,
that [Wade] would be distracted when returning to her car by maintaining a lookout for other
vehicles, pedestrians, [or] carts, *** and not be looking down and be distracted.”
During its oral pronouncement at the November 2014 hearing on Wal-Mart’s
summary-judgment motion, the trial court first summarized the supreme court’s decision in
Ward. In so doing, the court quoted the following passage, which it determined “bears greatly
upon this case”:
“We may well have arrived at a different conclusion if the post would have been
located further away from the entrance of the building, or if the plaintiff would not have
been carrying any vision-obscuring bundle.” Id. at 153, 554 N.E.2d at 232.
After correctly assessing that the aforementioned passage was dicta, the trial court
continued, as follows:
“[T]hat tells [the court] that the supreme court may well have reached a different
conclusion if they knew that *** Wade was not carrying a vision-obscuring bundle
because, otherwise, if [Wade] had just been watching where she was stepping, which
she clearly wasn’t, she would have seen the pothole. [Wade] not only wasn’t watching,
but she was engaging in something more than even a brisk walk, jogging or trotting
[which] carries some sort of risk[.]
Now [Wade] suggests, well, there could have been other distractions, other
shopping carts, other cars and so on. Well, her own testimony, not to mention the
videotape, confirms that there weren’t any other distractions. If [Wade] had just been
watching where she was going, and her chances of doing that are improved if she was
walking instead of running, she would have seen [the pothole]. [So the court] get[s]
back to the presenting question, to what extent is the holding in Ward *** predicated
upon the fact that, indeed, [Wade] was carrying a vision-obscuring bund[le], one which
was reasonably foreseeable for the customers of [Wal-Mart] to be carrying.
*** [The court] keep[s] going back to the fact that this is clearly open and obvious.
[Wade’s] own testimony, not to mention the video ***, confirms that [Wade has] made
admissions that she is bound by that clearly make this open and obvious[.] [N]one of
the conditions that Wal-Mart might fear that [Wade would] be carrying something that
would obscure her vision were actually present.
***
The other thing that [the court] want[s] to say *** with regard to the *** distraction
theory, is that [the court] believe[s] it is significant that in this case, the landowner,
Wal-Mart, wasn’t responsible for the distraction which diverted [Wade’s] attention.
[Wade] wasn’t diverted by carrying a bulky item. She was diverted because she wasn’t
watching where she was going. And when [Wade’s] attention is diverted by something
that [Wal-Mart] has no control over–Wal-Mart can’t control whether [Wade] looks ***
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or whether she runs–then [the court] think[s] the exception for distraction does not
apply.”
As the aforementioned quoted text reveals, at the close of argument during the November
2014 hearing on Wal-Mart’s motion for summary judgment, the trial court meticulously set
forth its rationale for rejecting Wade’s distraction-exception claim by speaking, at length, from
the bench. Although the de novo standard of review does not require this court to give
deference to the trial court’s conclusions or specific rationale (Bituminous Casualty Corp. v.
Iles, 2013 IL App (5th) 120485, ¶ 19, 992 N.E.2d 1257), a trial court’s decision to carefully
explain the rationale underlying its ruling is always helpful because it provides valuable
insight, which a reviewing court may find entirely persuasive, as we do in this case. We further
note that a trial court can provide this valuable insight through a written order or by stating its
ruling on the record, as the court did in this case.
4. Wade’s Distraction-Exception Claim
Wade asserts that the distraction exception to the open and obvious doctrine applies
because “[i]t is reasonable for [Wal-Mart] to anticipate, under the circumstances, that [Wade]
would be distracted when returning to her car by maintaining a lookout for other vehicles,
pedestrians, [or] carts, *** and not be looking down and be distracted.” We disagree.
As we have previously noted, the distraction exception to the open and obvious doctrine
examines “whether the defendant should reasonably anticipate injury to those entrants on his
premises who are generally exercising reasonable care for their own safety, but who may
reasonably be expected to be distracted, as when carrying large bundles, or forgetful of the
condition after having momentarily encountered it.” (Emphasis added.) Ward, 136 Ill. 2d at
152, 554 N.E.2d at 232. “[T]he distraction exception will only apply where evidence exists
from which a court can infer that plaintiff was actually distracted.” Bruns, 2014 IL 116998,
¶ 22, 21 N.E.3d 684.
Despite Wade’s reliance on Ward, we agree with the trial court’s rationale that Ward is
distinguishable because Wade was not engaged in any activity that Wal-Mart should have
reasonably anticipated would have distracted her from the open and obvious hazard created by
the parking lot pothole. We also conclude that on this record, no other distractions existed at
the moment Wade decided to trot back to her SUV. At most, the record in this case showed that
Wade failed to exercise reasonable care for her own safety by paying attention to her
surroundings as she trotted back to her SUV. However, the mere fact that Wade’s attention was
focused elsewhere during that brief moment does not constitute the requisite distraction. See
id. (“[T]he mere fact of looking elsewhere does not constitute a distraction.”).
Accordingly, we affirm the trial court’s grant of summary judgment in Wal-Mart’s favor.
In so concluding, we commend the trial court for providing its comprehensive explanation
of its ruling, which this court found helpful in its resolution of this appeal.
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III. CONCLUSION
For the reasons stated, we affirm the trial court’s judgment.
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Affirmed.
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