Guolee Wins Appeal in Illinois Second District - Talking on Cellphone a "Self-Created Distraction"

March 27, 2015

Guolee Wins Appeal in Illinois Second District - Talking on Cellphone a "Self-Created Distraction"

Congrats to Q&H Chicago Shareholder Terrence Guolee, who recently won an appeal before the Illinois Second District Appellate Court.

In the case, a patron of a Starbucks coffee shop left his table in order to take a call on his cell phone. While pacing along a sidewalk outside the door of the coffee shop, the plaintiff stepped on some mulch and debris, only to have a stick poke through his shoe and impale his foot. Plaintiff testified he did not see the debris until he was injured and that he heard a manager of the location tell another employee that he was supposed to have cleaned up the debris. The debris was believed to have been blown out of planting areas near the sidewalk during a storm the prior night.

Plaintiff sued Starbucks and the owner of the shopping mall. Terrence's client, the owner of the shopping mall, moved for summary judgment arguing that the presence of the mulch and debris was an open and obvious hazard. Defenses were also raised arguing that the lease for the property placed the duty to maintain the sidewalk outside the coffee shop on the tenant, Starbucks.

The trial court entered summary judgment for all defendants. In so doing, the court agreed with the defendants that the presence of the mulch and debris was an open and obvious hazard. The court also found that plaintiff's claim that the he was distracted would not save the case, given that any distraction caused by one talking on a phone call would be a self-created distraction.

Following various post-trial proceedings, plaintiff appealed the entry of summary judgment in favor of defendants. Following briefing, the Illinois Second District Appellate Court ruled in favor of all defendants. In particular, they agreed that the mulch and debris on the sidewalk was an open and obvious hazard that the plaintiff should have noticed and avoided. Moreover, they agreed with the defendants' arguments that any distraction caused by plaintiff's talking on his cellphone was a "self-created distraction" that defendants had no duty to protect the plaintiff from. As such, the Appellate Court affirmed the trial court's entry of summary judgment.

The appeal is still within the time period for requests for rehearing or petitions for leave to appeal to the Illinois Supreme Court. The decision can be accessed at: http://www.state.il.us/court/R23_Orders/AppellateCourt/2015/2ndDistrict/2140663_R23.pdf.

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