Chicago Accident Lawyer Blog
“Open and Obvious” Defense in Illinois Premises Liability Cases
In Illinois premises liability cases, property owners have a legal duty to maintain their premises in a reasonably safe condition for those who lawfully enter the property. If there is a dangerous condition on a property, and a person is injured by the dangerous condition, the property owner may be held liable. One common defense in a premises liability case is the “open and obvious” defense. The experienced personal injury lawyers of Zneimer & Zneimer P.C. confront this possible defense in many premises liability cases.
What Is the “Open and Obvious” Defense?
The “open and obvious” doctrine states that a property owner is generally not liable for injuries caused by hazardous conditions that are readily visible and should be recognized by a reasonable person. According to the Restatement of Torts “obvious” “both the condition and risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgement.” Whether a dangerous condition is open and obvious is most often a question of fact for a jury to decide. For example, a large crack in a sidewalk that is open and obvious is covered with leaves, so it is not so obvious. Another common example is wet floors that have recently been mopped. The clear water on the floor may not be so obvious. However, where there is no dispute exists as to the physical nature of the condition, whether the dangerous condition is open and obvious is a question of law for the judge to decide. Open bodies of water, swimming pools, trains and high places have been found to be potential open and obvious dangers as a matter of law.
For example, you are walking in a sidewalk construction area, and you trip on a 2×4 piece of framing lumber that is being used to construct the new sidewalk. The property owner, in this case the city of Chicago, may argue that the piece of lumber and the construction area itself was an open and obvious condition that you should have noticed and avoided. If a motion to dismiss were to be filed based on the open and obvious defense, the judge would consider whether a reasonable person, using ordinary perception and judgment, would have seen and appreciated the risk posed by the construction site.
Exceptions to the”Open and Obvious” Defense
There are two possible exceptions “open and obvious” : the distraction exception and the deliberate encounter exception.
- The Distraction Exception
The distraction exception applies when a plaintiff is injured by an open and obvious hazard but was distracted at the time he encountered the hazardous condition. What if you were looking at your cell phone and were distracted and did not see the piece of lumber? Would this count as an exception to the “open and obvious” defense? The answer is no. Illinois courts have ruled that a plaintiff cannot recover for self-created distractions that the defendant could never reasonably foresee. Illinois law does not require landowners to protect against distractions that are solely within the plaintiff’s own mind.
When will the distraction exception possibly apply? For example, you go to a grocery store, and the store has set up a large Super Bowl display with cases of beer and cut outs of football players and cheerleaders. While you are looking at the display, you trip on a box that was left on the floor. In this case, it is arguably foreseeable to the store owner that a person would be distracted by the display since the store created the display and the purpose the display was made was for people to look at it. Even though the box may have been open and obvious, the distraction excetion may apply.
- The Deliberate Encounter Exception
The deliberate encounter exception applies when a person is compelled for economic reasons to deliberately proceed into a condition that is an open and obvious hazard.
For example, if a delivery driver must walk across a sidewalk that is under construction on my property to make a delivery to my building. The driver must make deliveries because that is his job and that is how he earns his money. It is foreseeable to the building owner that a delivery person might proceed into an area that is an open and obvious hazard to avoid possibly losing his job.
Contact an Experienced Illinois Premises Liability Attorney
The premises liability lawyers of Zneimer & Zneimer P.C. know from experience that the open and obvious defense is an issue in most premises liability cases. It is important to hire an attorney that knows the pit falls inherent in any premises liability case.