A man is killed when a bulk transport trailer backs into him without an audible back-up alary.

A worker sustained back injuries while moving a long, wooden beam.

A swimmer dives into a lake and strikes a submerged plastic pipe used to adjust the water level and sustains severe injuries.

A user of a recreation facility trips over a floor mat that was sticking up as she headed to the showers and injures herself.

One might call these dangers "open and obvious," which in the past might obviate a defendant’s duty because the risks are foreseeable. Proponents of the rule erroneously posit that without its enforcement, landowners would become absolute insurers for all injuries occurring on their premises. But, neither is it fair to make a plaintiff a self-insurer.

In recent years courts around the country have precluded summary judgment motions for defendants in premises liability or design defect cases like these, instead employing a balancing test for ascertaining whether such dangers were excessive or acceptable.

Under the more current approach to this problem, courts use the obviousness of the danger as merely one element in the equation in determining whether a defendant should be held liable; it is not a dispositive factor that decides the nonexistence of a duty. Other factors in the balance include the plaintiff’s and the public’s knowledge or appreciation of the danger, the risk of injury, the ability to eliminate or minimize the danger without seriously impairing the product or making it unduly expensive, or the utility of the landowner’s conduct and the burden of guarding the public from harm.

The concept of making something reasonably safer lies at the heart of the Restatement (Third) of Torts: Products Liability (Sect. 2, comment d, 1998) and its authors’ criticism of the common law rule that bars recovery against a defendant for open and obvious dangers. Perhaps this is in recognition of a growing number of jurisdictions that have enacted comparative fault legislation, thereby precluding the use of an "open and obvious" danger or the so-called patent danger doctrine as an absolute defense.

Jurisdictions such as Georgia, Oregon, Wyoming, Idaho, Utah, Florida, New Mexico, Mississippi and Wisconsin have found that the existence of a known or obviously dangerous condition does not necessarily preclude recovery by an invitee on one’s property. It simply is an element to be considered by a jury in apportioning negligence between the invitee and the owner of the land.

Illinois adopted comparative fault principles nearly 20 years ago (Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886 (1981)); and although the common law open and obvious rule, with certain exceptions, remains a viable legal principle in this state, courts here, by and large, appear to adopt the Restatement’s moderating approach.

The Illinois Supreme Court found that obvious dangers include fire, height and bodies of water; but they are "not a per se bar to finding that a defendant who owns, occupies or controls land has a duty to exercise reasonable care." Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 706 N.E.2d 460 (1998). Taking this lead, courts in this state are now assessing whether a duty is owned by applying a traditional duty analysis to the facts of the case, which include "the likelihood of injury, the reasonable foreseeability of such injury, the magnitude of guarding against the injury, and the consequences of placing that burden on the defendant." Id.

Take King v. King, No. 3-99-0027 (3d Dist., decided 2000); Ward v. Mid-American Energy Company, 729 N.E.2d 861 (3d Dist., 2000); Buchakljan v. Lake County Family Young Men’s Christian Association, No. 2-99-0353 (decided April 18, 2000); Carroll v. Faust, 311 Ill.App.3d 679, 725 N.E.2d 764 (2d Dist. 2000); and Staples v. Krack Corporation, 186 F.3d 977 (7^th Cir. 1999)(applying Illinois law) as recent examples.

In those cases, the courts on appeal reversed and remanded the cased for a jury to determine whether the danger was open and obvious or to determine proximate causation. Courts also are taking a closer look at whether the defendants are bearing their burden of proving that the plaintiff truly appreciated the risks or that the defect was foreseeability and that defendants should not be allowed a carte blanche affirmative defense.

In the case of premises liability, a plaintiff’s forgetfulness or being distracted has been found to be an exception to the rule. Illinois also has adopted the "deliberate encounter exception," as enunciated in the Restatement (Second) of Torts whereby 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," as in the case of a worker who risks losing his or her job. Sect. 343A, Comment f, at 220 (1965); LaFeyer v. Kemlite Company, 185 Ill.2d 380, 706 N.E.2d 441 (1998).

In cases involving defective products, the utilization of a balancing test whereby the risks inherent in the product design are weighed against the utility or benefit derived from the product is more regularly employed.

Perhaps that’s an outgrowth of some manufacturers eliminating or failing to disclose safety devices and instead making hazards obvious in an attempt to escape liability, the very antithesis of what is desired by the public.

In any event, defendant no longer are successful in their contradictory argument that the more outrageous the conduct by the party who has greater knowledge and who is in control, the less the responsibility.

In "open and obvious" cases, the duty of a manufacturer or property owner should be the same as in other tort cases. Acting reasonably in light of the apparent risks should be the general rule.

And, so long as the courts continue to use this maxim as its yardstick, rather than an intractable and outdated rule, justice will prevail.