open and obvious doctrine in Illinois

2007See also Bucheleres v. Chicago Park District, 171 Ill.2d 435, 455-56 , 216 Ill.Dec. 568 , 665 N.E.2d 826, 835-36 (1996) (holding that swimmers who were injured while diving into Lake Michigan off of a concrete wall were presented with an open and obvious danger despite the park district's recent manipulation of the bottom of the lake which made the lake much shallower in the area the swimmers were diving); but see Bucheleres, 171 Ill.2d at 463-68 , 216 Ill.Dec. 568 , 665 N.E.2d at 839-41 (Harrison, J., dissenting) (arguing in support of other jurisdictions that, upon enacting comparative-fault

2007See also Bucheleres v. Chicago Park District, 171 Ill.2d 435, 455-56 , 216 Ill.Dec. 568 , 665 N.E.2d 826, 835-36 (1996) (holding that swimmers who were injured while diving into Lake Michigan off of a concrete wall were presented with an open and obvious danger despite the park district's recent manipulation of the bottom of the lake which made the lake much shallower in the area the swimmers were diving); but see Bucheleres, 171 Ill.2d at 463-68 , 216 Ill.Dec. 568 , 665 N.E.2d at 839-41 (Harrison, J., dissenting) (arguing in support of other jurisdictions that, upon enacting comparative-fault

2024The deliberate encounter exception to the open and obvious rule 9 applies “ ‘where the possessor [of land] has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.’ ” Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002) (quoting Restatement (Second) of Torts § 343A cmt. f (1965)).

2018Bruns, 2014 IL 116998, ¶ 20 . ¶ 20 The distraction exception to the open and obvious doctrine applies when “ ‘the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.’ ” Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002) (quoting Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)).

2023Monson v. City of Danville, 2018 IL 122486 ; Ward v. K Mart Corporation, 136 Ill. 2d 132 (1990); Christakes v. SP Plus Corporation, 2018 IL App (1st) 172675-U . 2 Waters v. City of Chicago, 2012 IL App (1st) 100759 , did involve a plaintiff who tripped over a barricade at the entrance to a crosswalk, but it dealt with the applicability of the open and obvious doctrine and the distraction exception, neither of which are at issue in this case.

2021In affirming, the Third District found the “[p]laintiff was thoroughly familiar with the nature and location of the dangers he faced up on the stairway, and *** he chose to encounter those hazards while in total darkness.” Id. at 1121 . ¶ 63 While factually similar to this case, Rhoades was decided in 1980, 10 years before the supreme court adopted the “open and obvious” rule in Ward v. K Mart Corp., 136 Ill. 2d 132, 145 , 554 N.E.2d 223, 229 (1990) (recognizing that a plaintiff may be owed a duty of reasonable care despite the presence of a known or obvious risk), and almost 20 years before t

2026See Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 18 (explaining the four factors which guide a duty analysis are “(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant”); Bruns v. City of Centralia, 2014 IL 116998, ¶ 20 (“Whereas operation of the open and obvious rule negatively impacts the foreseeability and likelihood of injury, application of an exception to the rule positively impacts the foreseeability and likelihood of in

2021“Whereas operation of the open and obvious rule negatively impacts the foreseeability and likelihood of injury, application of an exception to the rule positively impacts the foreseeability and likelihood of injury.” Bruns, 2014 IL 116998, ¶ 20 . ¶ 44 This court considered whether to apply the deliberate encounter exception outside the workplace context in Winters v. MIMG LII Arbors at Eastland, LLC, 2018 IL App (4th) 170669 .

2023“Open and obvious” means that the condition and risk are apparent to and appreciated by a reasonable person “exercising ordinary perception, intelligence, and judgment.” Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435 (1990). ¶ 22 While the open and obvious rule applies to commonly dangerous conditions such as fire, height, and bodies of water, it may also apply to other conditions.

2021Deibert, 141 Ill. 2d at 434-35 ; Wade v. Wal-Mart Stores, Inc., 2015 IL App (4th) 141067, ¶ 22 . ¶ 32 The open and obvious rule is not confined to common and apparent hazards posed by fire, heights, or bodies of water, and may apply to other conditions that reasonable people would recognize as dangerous.

2022As stated, this is the “deliberate encounter” exception to the open-and-obvious rule, which provides that a possessor of land should anticipate harm when the possessor “ ‘has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risks.’ ” LaFever, 185 Ill. 2d at 391 (quoting Restatement (Second) of Torts § 343A, cmt. f, at 220 (1965)).

2021In affirming, the Third District found the “[p]laintiff was thoroughly familiar with the nature and location of the dangers he faced up on the stairway, and *** he chose to encounter those hazards while in total darkness.” Id. at 1121 . ¶ 63 While factually similar to this case, Rhoades was decided in 1980, 10 years before the supreme court adopted the “open and obvious” rule in Ward v. K Mart Corp., 136 Ill. 2d 132, 145 , 554 N.E.2d 223, 229 (1990) (recognizing that a plaintiff may be owed a duty of reasonable care despite the presence of a known or obvious risk), and almost 20 years before t

2026Belluomini v. Stratford Green Condominium Ass’n, 346 Ill. App. 3d 687, 691 (2004). ¶ 26 We find the circuit court’s summary judgment order cannot be affirmed on the basis that the City did not owe Clark a duty because she submitted evidence from which a reasonable jury could conclude the distraction exception to the open and obvious doctrine applies.

2017“Where an exception to the open and obvious rule applies, the outcome of the duty analysis with respect to the first two factors is ‘reversed.’ ” Id. (quoting Belluomini v. Stratford Green Condominium Ass’n, 346 Ill.

2023Open and Obvious Danger ¶ 28 Under the open and obvious rule, “a party who owns or controls land is not required to foresee and protect against an injury if the potentially dangerous condition is open and obvious.” Bruns, 2014 IL 116998, ¶ 16 (quoting Rexroad v. City of Springfield, 207 Ill. 2d 33, 44 (2003)).

2020Here, plaintiff argues that the act of watching his young granddaughter climb the stairs satisfied the distraction exception. ¶ 31 A review of the relevant case law cited by the parties reveals that the distraction exception to the open and obvious doctrine applies: (1) where the defendant actually created the foreseeably distracting condition of the premises (see Deibert v. Bauer Brothers Construction Company, 141 Ill. 2d 430, 434-39 (1990)); (2) where the plaintiff was focused elsewhere in order to avoid a potential hazard (see American National Bank & Trust Co. of Chicago v. National Advert

2026Clark does not contest that the condition was open and obvious but responds that the distraction exception to the open and obvious doctrine preserves her claim. ¶ 23 Under Illinois law, a court will consider four factors in determining whether a landowner owes a duty: “(1) the foreseeability that defendant’s conduct will result in injury to another; (2) the likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon defendant.” Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1027 (2005).

2017Corp., 2011 IL App (1st) 101283, ¶ 12 (citing Restatement (Second) of Torts § 343A(1) (1965), and Sandoval v. City of Chicago, 357 Ill.

2023Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 257 (2010).

2020Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill.

2020Here, plaintiff argues that the act of watching his young granddaughter climb the stairs satisfied the distraction exception. ¶ 31 A review of the relevant case law cited by the parties reveals that the distraction exception to the open and obvious doctrine applies: (1) where the defendant actually created the foreseeably distracting condition of the premises (see Deibert v. Bauer Brothers Construction Company, 141 Ill. 2d 430, 434-39 (1990)); (2) where the plaintiff was focused elsewhere in order to avoid a potential hazard (see American National Bank & Trust Co. of Chicago v. National Advert

2004A duty has been imposed pursuant to the distraction exception in cases where a student was distracted from a hole in a parking lot because he was focused on carrying a football helmet to a player who needed it (Rexroad v. City of Springfield, 207 Ill. 2d 33, 46 (2003)); where a painter was distracted from power lines because he had to watch where he placed his feet on a billboard walk-rail (American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 29 (1992)); where an electrician was distracted from a tire rut when he looked up to see whether construction mater

2015Id. at 112-13 . ¶ 37 In affirming the appellate court, the supreme court discussed the application of the open-and-obvious rule to the action.

2007The open and obvious rule states that a possessor of land is not liable to invitees for harm caused by any “condition on the land whose danger is known or obvious to them.” LaFever, 185 Ill. 2d at 390 , quoting Restatement (Second) of Torts §343A(1), at 218 (1965); Blue, 215 Ill. 2d at 105 .

2023Id. at 19 . ¶ 33 Similarly, in the instant case, the visibility of the depth of the pothole was in dispute such that we cannot say as a matter of law that the risk posed to plaintiff in riding his scooter over the pothole was so open and obvious to Jessica as to obviate defendant’s duty of care. ¶ 34 Even if the risk posed to plaintiff in riding his scooter over the pothole was open and obvious to Jessica, there is also a question of material fact as to whether the distraction exception to the open and obvious doctrine applies here.

2015The open-and-obvious doctrine assumes "that people encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks." (Emphasis added.) Alqadhi, 405 Ill.

2020See, e.g., Garest, 2014 IL App (1st) 121845 , ¶ 32 (noting that because the independent contractor that constructed the building where plaintiff was injured “cannot be considered a landowner in this case, it follows that [the contractor] is unable to avail itself of arguments pertaining to landowners that are based on premises liability principles”).

2018See Garest v. Booth , 2014 IL App (1st) 121845 , ¶¶ 29-32, 382 Ill.Dec. 382 , 12 N.E.3d 661 (construction contractor who completed work years before plaintiff's accident and did not "possess, control, or manage the building" could not invoke the "open and obvious doctrine"). ¶ 59 For the foregoing reasons, we reverse the order of the circuit court, to the extent that it granted summary judgment in favor of the three defendants: Lofts, PSI, and BMS. ¶ 60 We proceed to address Popke's brief to our court in which she claims *15 that we must affirm the trial court to the extent that it granted Pop

2018Park , 2011 IL App (1st) 101283 , ¶ 13, 355 Ill.Dec. 882 , 960 N.E.2d 764 ; see also Bucheleres , 171 Ill. 2d at 456 , 216 Ill.Dec. 568 , 665 N.E.2d 826 ("Having affirmed the applicability of the open and obvious doctrine to the case at bar, we complete the analysis of duty by assessing the effect the open and obvious doctrine has on the traditional factors that are relevant to the courts' imposition of a duty.").

2018Park , 2011 IL App (1st) 101283 , ¶ 13, 355 Ill.Dec. 882 , 960 N.E.2d 764 ; see also Bucheleres , 171 Ill. 2d at 456 , 216 Ill.Dec. 568 , 665 N.E.2d 826 ("Having affirmed the applicability of the open and obvious doctrine to the case at bar, we complete the analysis of duty by assessing the effect the open and obvious doctrine has on the traditional factors that are relevant to the courts' imposition of a duty.").

2024Section 343 of the Restatement (Second) of Torts, which deals with premises liability, provides: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” Restatemen

2023We agree with the City. ¶ 22 In Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468 (1976), the supreme court established the standard for a landowner’s liability for a dangerous condition on the land.

2014Corp., 2013 IL App (1st) 102766-B, ¶ 22 (“The open and obvious doctrine is an exception to [the landowner’s] general duty of reasonable care *** and provides that the landowner is not liable for physical harm to individuals caused by any activity or condition on the land whose danger is known or obvious unless the landowner should anticipate the harm despite such knowledge or obviousness ***.); Lange, 358 Ill.

2014Corp., 2013 IL App (1st) 102766-B, ¶ 22 ("The open and obvious doctrine is an exception to [the landowner's] general duty of reasonable care *** and provides that the landowner is not liable for physical harm to individuals caused by any activity or condition on the land whose danger is known or obvious unless the landowner should anticipate the harm despite such knowledge or obviousness ***.); Lange, 358 Ill.

2023Moreover, the open and obvious doctrine affected whether the City owed plaintiff a duty, which is an element of any -6- negligence action (see Bruns v. City of Centralia, 2014 IL 116998, ¶¶ 13, 15-16 ; Ballog v. City of Chicago, 2012 IL App (1st) 112429, ¶ 20 ), and part of the plaintiff’s burden of proof, not the defendant’s.

2016Bucheleres, 171 Ill. 2d at 456 ; but see Ballog, 2012 IL App (1st) 112429, ¶¶ 35, 40 (declining to apply the four factors after finding an open and obvious condition). ¶ 34 Obviousness requires that a reasonable person in the visitor’s position, exercising ordinary intelligence, perception, and judgment, would recognize both the condition and the risk.

2024This exception “is applied most commonly, though not exclusively, in situations where ‘workers are compelled to encounter dangerous conditions as part of their employment obligations.’ ” Crespo-Fregoso v. City of Chicago, 2021 IL App (1st) 200972, ¶ 43 (quoting Morrissey v. Arlington Park Racecourse, LLC, 404 Ill. App. 3d 711, 725-26 (2010)).

2015We are not persuaded. ¶ 41 Under the deliberate-encounter exception to the open-and-obvious doctrine, "harm may be reasonably anticipated when the possessor 'has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.' " LaFever v. Kemlite Co., 185 Ill. 2d 380, 391 , 706 N.E.2d 441, 448 (1998) (quoting Restatement (Second) of Torts § 343A, cmt. f 220 (1965)). "[T]his exception has most often been applied in cases involving some economic compulsion, as where w

2021See, e.g., Olson v. Williams All Seasons Co., 2012 IL App (2d) 110818 , ¶ 43 (dim lighting); Van Gelderen v. Hokin, 2011 IL App (1st) 093152, ¶¶ 23, 30 (visibility of basement staircase in relation to placement of door and direction it opened); Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14, 15-16, 18 (2010) (dim lighting and optical illusion of a flat walking surface); Duffy v. Togher, 382 Ill. App. 3d 1, 11 (2008) (optical illusion as to depth of pool); Buchaklian v. Lake County Family Young Men’s - 14 - Christian Ass’n, 314 Ill. App. 3d 195, 202 (2000) (size and lack of contrast in

2013See Buchaklian v. Lake County Family Young Men’s Christian Ass’n, 314 Ill.

2020“With respect to conditions on land, generally there is no duty of care owed by the landowner regarding open and obvious conditions because the landowner ‘could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition.’ ” Ballog, 2012 IL App (1st) 112429, ¶ 21 (quoting Ward, 136 Ill. 2d at 148 ). ¶ 23 “ ‘The term [o]bvious denotes that both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.’ ” Ba

2016Prostran v. City of Chicago, 349 Ill.

2008Ford, 377 Ill.

2008See Ford v. Round Barn True Value, Inc., 377 Ill.

2018Although BMS did not file a cross-appeal, Henderson's notice of appeal was directed broadly to "the trial court's order of September 16, 2016" and not limited to particular motions or parties. "[T]he notice of appeal is to be liberally construed as a whole." Jackson v. Retirement Board of the Policemen's Annuity & Benefit Fund , 293 Ill.

2018Although BMS did not file a cross-appeal, Henderson’s notice of appeal separate and distinct from the issue of a plaintiff’s contributory negligence and the parties’ comparative fault.”). - 23 ­ 1-16-2744 was directed broadly to “the trial court’s order of September 16, 2016” and not limited to particular motions or parties. “[T]he notice of appeal is to be liberally construed as a whole.” Jackson v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 293 Ill.

2025See Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 414 (1991). ¶ 53 The open-and-obvious doctrine is an exception at common law to the general duty of care owed by a landowner.

2025See Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 141 (1991). ¶ 54 The open-and-obvious doctrine is an exception at common law to the general duty of care owed by a landowner.

2022“When a condition is open and obvious, the first duty factor weighs against imposing a duty because courts assume that persons encountering potentially - 10 - dangerous conditions will appreciate and avoid the risk, making the likelihood of injury slight. [Citation.] Likewise, when a condition is open and obvious, the second factor weighs against imposing a duty because a defendant is ordinarily not required to foresee injury from a dangerous condition that is open and obvious.” (Internal quotation marks omitted.) Id. ¶ 44 Accordingly, if (as in the present case) a statute affirmatively provid

2022“The appropriate weight given to these four factors depends upon the unique circumstances of an individual case.” Winters, 2018 IL App (4th) 170669 , ¶ 57. ¶ 42 Unlike the common-law defense of contributory negligence, the open and obvious doctrine is not a defense to negligence but an analytical doctrine for determining the existence of a duty.

2021One such instance is the “distraction exception” to the open-and-obvious doctrine, where the possessor “has reason to expect that the invitee’s attention may be distracted so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Restatement (Second) of Torts § 343A cmt. f (1965); Lee, 2019 IL App (2d) 180923, ¶ 17 . “[T]he distraction exception only applies where it is reasonably foreseeable that a plaintiff might be so distracted that she blunders into an open and obvious danger.” Negron v. City of Chicago, 2016 IL App (1st)

2016Krywin, 238 Ill. 2d at 225 ; Negron, 2016 IL App (1st) 143432, ¶ 14 .

2020Compare Krywin, 238 Ill. 2d at 232-33 (natural accumulation rule exists because to hold otherwise would place and unreasonable and impractical burden on landowners) with Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448 (1996) (rationale behind the open and obvious rule is that the law assumes reasonable people should avoid obvious dangers).

2016Krywin, 238 Ill. 2d at 225 ; Negron, 2016 IL App (1st) 143432, ¶ 14 .