By Colin H. Dunn
There’s a well-established framework for analyzing whether a defendant-landowner owes a duty to an injured plaintiff-invitee in premises liability cases in Illinois: A landowner owes the invitee a duty to protect him from unreasonably dangerous conditions — unless the danger is open and obvious — unless the distraction or deliberate-encounter exceptions to the open-and-obvious-danger rule apply.
Those exceptions recognize that there are times where “the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.” Restatement (Second) of Torts Section 343A cmt. f, at 220 (1965).
The distraction exception applies “where the possessor [of land] 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.” Id.
Recently, our Supreme Court had to decide whether this exception applied when a woman tripped on a defect in a public sidewalk because she was looking at the front door of a medical clinic (in fact, an eye clinic!) she was walking toward. Bruns v. City of Centralia, 2014 IL 116998.
The court began its analysis (as it always does) by noting that whether a duty exists depends upon “whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff,” an analysis that is based on four factors: (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. Simpkins v. CSX Transportation Inc., 2012 IL 110662, ¶ 18; LaFever v. Kemlite Co., 185 Ill.2d 380, 389 (1998).
The existence of an open and obvious danger is not a per se bar to the finding of a legal duty on the part of a defendant; “[i]n assessing whether a duty is owed, the court must still apply traditional duty analysis to the particular facts of the case.” Id. Accord Sollami v. Eaton, 201 Ill.2d 1, 17 (2002).
Application of the open-and-obvious rule affects the first two factors of the duty analysis: the foreseeability of injury and the likelihood of injury. Where the condition is open and obvious, the foreseeability of harm and the likelihood of injury will be slight, thus weighing against the imposition of a duty. But where an exception to the open-and-obvious rule applies, the outcome of the duty analysis with respect the first two factors is “reversed.”
Sidewalk defects have been found to be open and obvious dangers. E.g., Rexroad v. City of Springfield, 207 Ill.2d 33, 36 (2003) (hole in parking lot adjacent to high school football field); Sandoval v. City of Chicago, 357 Ill.App.3d 1023, 1029 (2005) (defective sidewalk in front of the plaintiff’s home). So the next question for the court was whether the distraction exception applied.
The only distraction identified by the plaintiff was “that her attention was fixed on the door and steps of the clinic.” While the court hasn’t adopted a precise definition of what constitutes a “distraction” for purposes of this exception, prior cases applying that exception have had two common traits: (1) There must be “some circumstance … that required the plaintiff to divert his or her attention from the open and obvious danger or otherwise prevented him or her from avoiding the risk” and (2) “the distraction was reasonably foreseeable by the defendant.” Bruns, 2014 IL 116998, ¶¶ 23-9.
The court found the distraction exception did not apply because the plaintiff had “failed to identify any circumstance, much less a circumstance that was reasonably foreseeable by the city, which required her to divert her attention from the open and obvious sidewalk defect, or otherwise prevented her from avoiding the sidewalk defect.”
According to the court, “[t]o the extent that looking elsewhere could, itself, be deemed a distraction, then it is, at most, a self-made distraction.” But allowing a plaintiff to recover for self-made distractions would be contrary to “[t]he very essence of the open-and-obvious rule: Because the risks are obvious, the defendant could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition.”
However, determining that the distracted exception did not apply “does not end the inquiry regarding duty in a negligence case.” Bruns, 2014 IL 116998, ¶¶ 35, quoting Sollami, 201 Ill.2d at 17. Under Illinois law, the four factors noted above (i.e., (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) must still be analyzed. Id.
The court found the first two factors weighed against finding the existence of a duty because a defendant is ordinarily not required to foresee injury from a dangerous condition that is open and obvious and because it is assumed that persons encountering the potentially dangerous condition of the land will appreciate and avoid the risks, making the likelihood of injury slight.
As to the third and fourth factors, the court found that the burden on the city of repairing this particular stretch of sidewalk, or otherwise protecting pedestrians from the sidewalk defect, was not contained in the record. But even if the burden was not great, the consequences of imposing that burden on the city would go well beyond the risk of injury posed by that sidewalk defect.
“The city has miles of sidewalk to maintain” and “[t]he imposition of this burden is not justified given the open and obvious nature of the risk involved.”
Accordingly, the court found city had no duty to protect the plaintiff from the open-and-obvious sidewalk defect.