When a Pothole Is Not So Open And Obvious

Roadway defect cases are a regular part of municipal litigation. For townships and municipalities, these cases often turn on a deceptively simple question. Should the danger have been obvious to the person who was injured.

The Second District Appellate Court’s decision in Tarango v. Village of Carpentersville helps illustrate how that question is analyzed and why it sometimes prevents courts from ending a case early.

In Tarango, the plaintiff claimed she injured her ankle after stepping into a pothole located behind her parked car on a residential street. She had parked along the roadway to visit her mother and later returned to her vehicle while carrying bags. As she stepped into the street, she stepped into a pothole she said she did not see.

She sued the Village, alleging that it failed to properly maintain the roadway. The Village responded by asking the court to enter summary judgment in its favor.

Summary judgment is a procedural tool that allows a court to decide a case without a trial when there are no genuine disputes about the key facts. It is not meant to decide who is telling the truth or whose evidence is stronger. Instead, the court asks whether reasonable people could look at the evidence and disagree. If they could, the case must be decided by a jury.

The Village argued that it owed no duty to the plaintiff because the pothole was an open and obvious condition. Under Illinois law, landowners and public entities are generally not required to protect people from dangers that are readily apparent. The reasoning is practical. If a condition is obvious, it is not reasonable to expect the property owner to anticipate that someone will fail to avoid it.

For a condition to be considered open and obvious, however, both the condition and the risk it poses must be apparent to a reasonable person in the plaintiff’s position.

The Appellate Court concluded that this determination could not be made as a matter of law in Tarango. The plaintiff and her sister testified that the pothole was partially hidden by a parked vehicle, shaded, and blended into the surrounding pavement. The Village submitted photographs to show the pothole was visible, but the court found that the photographs did not conclusively resolve the issue. In other words, reasonable people could look at the evidence and disagree about whether the pothole would have been seen.

The Village also argued that even if the specific pothole was not obvious, the plaintiff should have appreciated the risk of walking on the roadway based on its overall condition. Courts sometimes consider the general appearance of an area when determining whether a danger was obvious, as illustrated in cases like Conder v. Realington Enterprises, LLC.

The Appellate Court rejected that argument in this case. The plaintiff did not testify that the entire roadway appeared broken or hazardous, and the photographs did not show a street so deteriorated that danger would have been obvious to anyone walking on it.

The court also pointed to prior decisions, including Becker v. Alexian Bros. Medical Center and Alqadhi v. Standard Parking, Inc., recognizing that visibility can be affected by lighting, shadows, contrast, and surrounding conditions. When those factors are disputed, the question of whether a condition is open and obvious often becomes a factual issue rather than a legal one.

Because of these disputes, the Appellate Court held that the trial court should not have ended the case at the summary judgment stage. Whether the pothole was open and obvious and whether the Village owed a duty of care were issues that needed to be decided by a jury.

For townships and municipalities, Tarango highlights an important reality of roadway defect litigation. Even ordinary conditions like potholes can lead to trial when visibility is questioned. Photographs alone may not be enough to establish that a condition was obvious, particularly when testimony suggests it was obscured or difficult to see.

While public entities have strong protections under the Tort Immunity Act, courts remain cautious about applying those defenses where factual disputes exist. Understanding how concepts like duty, open and obvious conditions, and summary judgment operate helps explain why some cases proceed further than municipalities would expect.

For defense counsel, these decisions reinforce the importance of developing a clear factual record addressing not just the defect itself, but how it appeared in real world conditions at the time of the incident.