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    Posted on June 1, 2013 To

    Clifford’s Notes, Chicago Lawyer June 1, 2013

    By Robert A. Clifford

    For years, Illinois courts have protected landowners from obvious dangers and risks on their property if it involved fire, drowning and falling from a height. These three dangers were considered examples of a per se obvious danger. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 118, 660 N.E.2d 863, 863 (1995). A new wrinkle has been added to the concept of open and obvious danger in Illinois. In the recent case of Choate v. Indiana Harbor Belt Railroad Company, 2012 IL 112948, 980 N.E.2d 58 (2012), the court added a moving train to that short list.

    In Choate, a 12-year-old boy went through a hole in the fence and attempted to hang onto a slow-moving freight train. He slipped, causing one of his feet to be crushed, which ultimately led to its amputation. The case went to trial and a jury returned a verdict for $6.5 million which was reduced by 40 percent for his contributory negligence. The appellate court affirmed, but the Illinois Supreme Court found that the railroad had no duty to the trespassing child and reversed. Chief Justice Thomas Kilbride dissented in that case stating, “I emphasize that defendant here had actual knowledge that children were trespassing on its property and interacting with moving trains. On these facts, how can this court possibly conclude that defendant could not foresee harm to children?”

    Kilbride asked many questions: What constitutes a “moving” train? Does it matter how fast or how slow the train is moving? What if the train is moving only 1 mph and a child is hurt while trying to “beat the train” across the tracks? Does it apply to minors under 18? What about individuals, children or adults with limited mental capacity or mental health issues? Does our holding mean that children who are allowed to roam outside by negligent parents no longer have any protection under the law for open and obvious dangers? Finally, what is to limit an extension of this decision to other moving objects that pose obvious dangers, such as moving trucks, buses or other vehicles?

    These are all valid questions that according to the chief justice should not be subject to a bright-line test. I would add that in today’s society, given what children see on reality shows, the Internet and video games, many do not appear to appreciate real danger. Kilbride could not have been more prescient. Another case has come down, this one from an Illinois Appellate Court, that extended this doctrine to an extended hole in a Chicago street due to unfinished construction. No barriers or warning signs. Just an innocent pedestrian walking and admiring a nearby church when she steps in the hole, falls and fractures her foot. In Ballog v. City of Chicago, IL App (1st) 112429 980 N.E.2d 690 (2012), the court found, relying on Choate, the danger was open and obvious.

    As the Ballog court pointed out, open and obvious dangers require an examination of the duty element of the defendant, but it also means the court will look at the plaintiff’s contributory negligence. Here, the court engaged in a factor analysis that included the burden on the landowner to protect against the harm. What trouble would it have been for the city to leave some barricades or yellow tape near the intersection warning those on foot that they need to be more careful? Instead, the burden was placed entirely on the plaintiff when the court decided as a matter of law that the issue would not be decided by a jury and instead was decided on a motion for summary judgment. Ballog extends the reasoning of Choate to hold, as a matter of law, that the hole at the intersection was open and obvious instead of applying established case law that has held “whether the condition itself services as notice of its presence … [is] properly left to the trier of fact.” Simmons v. American Drug Stores, Inc., 329 Ill.App.3d 38, 768 N.E.2d 46 (2002). The Ballog court found this only applies when there is a “dispute about the physical nature of the condition” and it found no dispute about the gap in the street. The photos in the court record show a gap, but it is not clear if a pedestrian would clearly see it.

    As Kilbride expressed his concern as to how far the open and obvious doctrine would be extended, it is already being applied to unprotected holes in the street. Finding this as a matter of law precludes the defendant from being held to any legal duty for something that presents a real danger for everyone walking around. Courts should heed Kilbride and turn to Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 425, 706 N.E.2d 460 (1998), in which the Illinois Supreme Court held that “[t]he existence of an open and obvious danger is not a per se bar to finding that a defendant who owns, occupies or controls land has a duty to exercise reasonable care.” This is particularly true when the defendant has actual knowledge of the danger.

    In Ballog, it is unquestionable that the city of Chicago knew or should have known that construction workers left the job undone. The city also should have been under a duty to warn of the dangerous condition.

    It appears the Ballog court held that a defendant can leave the job in a dangerous condition and unsuspecting people should realize all that is going on around a busy intersection — without a jury being allowed to examine and weigh all of the facts. That is a dangerous precedent.