Naperville Slip and Fall Claims: Exceptions to the Open and Obvious Defense

What is the Open and Obvious Defense?

In a premises case, such as a slip and fall, there is a framework for establishing whether a defendant, usually the landowner, is liable to the plaintiff for injuries the plaintiff sustained on the defendant’s land. The landowner is liable to the plaintiff for the condition on his/her land that caused the injury if s/he: (1) knows or in the exercise of reasonable care would discover the condition and should realize that the condition involves an unreasonable risk of harm, and (2) should expect that such persons will not discover or realize the danger or will fail to protect themselves against it, or (3) fails to exercise reasonable care to protect the plaintiff. Genaust v. Ill. Power Co., 62 Ill.2d 456 (1976).

However, a defendant can defeat the plaintiff’s case using several defenses. One of the defenses a defendant can use is the open and obvious defense. Under the open and obvious defense, a defendant will not be liable for the plaintiff’s injury if the item causing the injury was “open and obvious.” A defendant will be liable to the plaintiff for the plaintiff’s injuries if the condition on the defendant’s property was hidden or otherwise undiscoverable by the plaintiff. Examples of open and obvious conditions given in Illinois’ Pattern Jury Instructions include bodies of water (Bucheleres v. Chi Park Dist., 171 Ill.2d 435 (1996)), electricity (Genaust v. Ill. Power Co,, 62 Ill.2d 456 (1976)), and trucks poised on an inclined ramp (Sepesy v. Arch Daniels Midland Co., 97 Ill. App. 3d 868 (4th Dist. 1981)).

Exceptions to the Open and Obvious Defense

There are two exceptions to the open and obvious defense that will allow for a plaintiff to proceed with their case against the defendant.

  1. The Distraction Exception

The first exception to the open and obvious defense is the distraction exception. The distraction exception applies where the landowner has reason to expect that the plaintiff’s attention may be distracted in such a way that s/he will not discover what is obvious, or forget what s/he has discovered, or fail to protect herself/himself against it. Sollami v. Eaton, 201 Ill.2d 1, 15 (2002).

A recent case by the First District Appellate Court addressed the distraction exception in a slip and fall case. In the case, Henderson v. Lofts at Lake Arlington Towne Condominium Association, the plaintiff, Steven Henderson, was injured when he slipped and fell on wet stairs outside the condominium entrance during a rain storm. Henderson v. Lofts at Lake Arlington Towne Condominium Assoc., 2018 IL App (1st) 162744, ¶ 4. The defendants denied liability for the plaintiff’s injury by claiming the open and obvious defense, stating that the plaintiff failed to avoid the obvious slick condition of the wet stair. Id. at ¶ 8. The trial court granted the defendants’ motion for summary judgment and found that the open and obvious rule applied because the plaintiff acknowledged the danger, knew of the danger, and was concerned about the danger. Id. at ¶ 29. The appellate court reversed the trial court’s decision and held that the distraction exception to the open and obvious defense applied. Id. at ¶ 55. In holding that the distraction exception applied, the court reasoned that it was foreseeable for the plaintiff to momentarily forget that the area near the entrance was slippery when wet. Id. at ¶ 54.

        2. The Deliberate Encounter Exception

The second exception to the open and obvious defense is the deliberate encounter exception. The deliberate encounter exception applies where the landowner has reason to expect that the plaintiff will proceed to encounter the known/obvious danger because a reasonable person in the plaintiff’s position would believe that encountering the danger outweighs the risk of injury. Sollami, 201 Ill.2d at 15.

A knowledgeable personal injury attorney will know how to apply the two exceptions to the open and obvious defense in premises cases.  For more information on slip and fall cases generally, visit our premises page HERE. If you or a loved one has been injured in a premises case, such as a slip and fall, contact the personal injury law firm John J. Malm & Associates to learn more about how you may be entitled to receive compensation.