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)). Continue reading