PREMISES LIABILITY UPDATE

Transcription

1 PREMISES LIABILITY UPDATE Presented and Prepared by: Jeffrey T. Bash Edwardsville, Illinois Prepared with the Assistance of: Michael P. McGinley Edwardsville, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2011 Heyl, Royster, Voelker & Allen E-1

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3 PREMISES LIABILITY UPDATE I. INTRODUCTION... E-4 II. RESTATEMENT (THIRD) AND ITS IMPACT ON ILLINOIS LAW... E-4 A. A Comparison Between Restatement (Second) and Restatement (Third)... E-4 1. Illinois Law and Restatement (Second); Application to Landowners/Operators... E-4 2. Illinois Law and Restatement (Third); Application to Landowners/Operators... E-5 3. Exceptions... E-6 B. Conclusion... E-7 III. LEGISLATION... E-7 IV. DUTY... E-8 A. No Duty Owed in Take Home Asbestos Exposure Case to Family Members Because Plaintiff Not an Entrant... E-8 B. Landowner Has Duty to Exercise Reasonable Care to Prevent Unreasonable Risk of Harm Arising from Trees Near a Roadway... E-9 C. Special Relations Giving Rise to Duty to Aid or Protect Owners of Indoor Football Arena Had a Duty to Protect Spectator Against an Unreasonable Risk of Injury... E-10 D. Criminal Attack Special Relations and the Voluntary Undertaking Doctrine Landlord Had No Duty to Protect Tenant From Criminal Activities by Third Persons Despite Having a Special Relationship with Plaintiff... E-11 E. Recreational Use Doctrine and Act Recreation Association and Coach Immune From Premises Liability After Spectator Hit with Ball at Baseball Game... E-13 E-2

4 V. SLIP & FALL CASES... E-14 A. The Open and Obvious Exception and the Exceptions to the Exception Summary Judgment for Premises Owner Despite Plaintiff Tripping on Empty Pallet Because Risk Was Open and Obvious. Further, the Distraction Exception and Deliberate Encounter Exception Did Not Apply.... E-14 B. How Is the Open and Obvious Exception Applied to a Minor Who Falls on Home Exercise Equipment?... E-16 C. Snow and Ice Removal Act Immunity Provided by the Act Does Not Apply to Driveways Even If Primary Ingress and Egress to Premises... E-17 D. Slip and Fall The Distraction Exception to the Open and Obvious Exception... E Fall on Sidewalk of Apartment Complex While Carrying Groceries Distraction Exception Does Not Apply Because Distraction Solely Caused by Plaintiff... E Fall On Parent s Front Steps After Eating, Studying, Watching Television and Napping Distraction Exception Does Not Apply... E-19 E. Slip and Fall at Construction Site Distraction and Deliberate Encounter Exceptions Do Not Apply to Construction Worker Who Fell While Talking on His Cell Phone as He Was Familiar with Ruts at Construction Site... E-19 F. Slip and Fall on Municipal Property... E Fall on Sidewalk Owned by City but Allegedly Appropriated by Adjacent Property Owner. Homeowner s Acts of Raking Leaves, Mowing Around and Salting During Winter Do Not Give Rise to a Duty to Ensure the Safe Condition of a Public Sidewalk.... E Municipality Maintained Alley Tort Immunity Act Did Not Apply Because Plaintiff Was a Permitted and Intended User of Alley... E Municipality Maintained Sidewalk Tort Immunity Act Applied Because Sidewalk Increased the Usefulness of Public Property Intended to Be Used for Recreation... E-22 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. E-3

5 PREMISES LIABILITY UPDATE I. INTRODUCTION Premises Liability litigation can take many forms and cases involve persons injured while on another person s property. This presentation reviews current developments in the case law and statutes on common theories of liability in premises-related personal injury claims. II. RESTATEMENT (THIRD) AND ITS IMPACT ON ILLINOIS LAW In 2005, the American Law Institute (ALI) approved nine chapters of the Restatement (Third) of Torts. Since then, only the first seven chapters have been published. Chapter 9 dealing with a land possessor s duties has yet to be published but will become part of a second volume of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. At first blush, Chapter 9 appears to drastically change the approach of the corresponding chapters in the Restatement (Second). However, reviewing the cases that have been decided since the Restatement (Second) was published reveals that the changes may have very little impact on premises liability litigation. A. A Comparison Between Restatement (Second) and Restatement (Third) Under the Restatement (Second), a land possessor s duty was determined based upon the status of the entrant to the land, as well as the source of the risk, such as whether a hazardous condition of the land was due to the land possessor s conduct, an artificial condition or a natural condition. The new Restatement (Third) takes a different approach. It adopts a single possessor duty of reasonable care to all entrants to the possessor s land, including trespassers. The reasonable care standard applies regardless of the source of the risk, in all situations except as to flagrant trespassers for natural conditions on the land. 1. Illinois Law and Restatement (Second); Application to Landowners/Operators The Illinois Supreme Court, in Ward v. Kmart Corp., 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990), explained the duty of landowners/operators to invitees, licensees, and trespassers under the current state of the law in Illinois: With respect to conditions on land, the scope of the landowner's or occupier's duty owed to entrants upon his premises traditionally turned on the status of the entrant. The operator of a business, though not an insurer of his customer's safety, owed his invitees a duty to exercise reasonable care to maintain his E-4

6 premises in a reasonably safe condition for use by the invitees. Licensees and trespassers were owed substantially narrower duties. [Citations omitted]. Ward, 136 Ill. 2d at 141. The Illinois General Assembly enacted the Premises Liability Act (740 ILCS 130/1), which provides, in pertinent part: Id. 2. The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them. In Ward, the Illinois Supreme Court continued: The duty expressed in the Act is phrased somewhat differently than the duty owed to invitees under the common law. Under the common law, the landowner's or occupier's duty was to use reasonable care to maintain his premises in a reasonably safe condition. However, even under the common law, if he chose to maintain a dangerous condition on his premises, it was generally held that an adequate warning to invitees would suffice to render the condition reasonably safe. He did not have to actually remove all dangers from his premises in order to avoid liability. The Premises Liability Act thus does not significantly alter the common law duty owed by an owner or occupier of premises to invitees thereon, but rather retracted the special but limited immunity from tort liability enjoyed by owners and occupiers of land with respect to licensees. Id. at Illinois Law and Restatement (Third); Application to Landowners/Operators (a) Standard of Care When published, Restatement (Third) of Torts: Liability for Physical and Emotional Harm, will impact the standard of care owed by a landowner to their land s entrants. However, this may have very little impact on Illinois law due to the General Assembly s elimination of the common law distinction between invitees and licensees by statute. See, 740 ILCS 130/2. The real change E-5

7 and challenge will be the interpretation of the flagrant trespasser, and how this affects landowners/operators duty to all trespassers. For states that still adhere to the rigid plaintiff classification system of Restatement (Second) to determine the duty owed by landowners/operators to plaintiffs, Restatement (Third) announces the elimination of the existing system. Restatement (Third) adopts a unitary landowner/operator duty standard of reasonable care to all entrants to the landowner/operator s land, including trespassers, with the sole exception of flagrant trespassers. See, Hope T. Cannon, The New Restatement, Chapters 8 and 9, For The Defense (January 2011). Consequently, Courts... no longer have to address whether an entrant is a licensee, an invitee or a trespasser in determining whether and which duty applies. Instead, under the Restatement (Third), a fact finder has to decide only if an entrant is a trespasser, a non-trespasser or a flagrant trespasser. Id. at 19. (b) Flagrant Trespasser The definition of flagrant trespasser was not clearly articulated by the American Law Institute when drafting the Restatement (Third). Thus, individual trespassers are to be so classified on case-by-case basis according to the degree to which their entry invades the possessor's right to exclusive possession. James A. Henderson, Jr., The Status of Trespassers on Land, 44 Wake Forest L.Rev (Winter 2009). The overarching concern will be fairness: It will be observed that the notion of flagrant trespasser, as the drafters use it, is essentially a noninstrumental, fairness-based norm. Comment a to section 52 [Chapter 9, Restatement (Third)] says it would be unfair to allow bad-guy trespassers to insist on reasonable care; comment h says it would be unjust. 44 Wake Forrest L.Rev. at Exceptions The exceptions to the general duty of reasonable care owed by a landowner/operator to entrants on land are stated in 52 of Chapter 9 Restatement (Third): A land possessor s duty to a flagrant trespasser and to a trespasser for natural conditions on uninhabited and unimproved land is limited to: (a) not acting in an intentional, willful, or wanton manner to cause physical harm to the trespassers; and (b) exercising reasonable care for a trespasser who reasonably appears to be: (1) imperiled; and (2) helpless or unable to protect himself or herself. E-6

8 Thus, the landowner/operator s general duty is limited when it comes to warning a trespasser about a hazard created by natural conditions. See, Hope T. Cannon, The New Restatement, Chapters 8 and 9, For The Defense (January 2011). Also, the landowner/operator s duty is limited to refraining from acting intentionally wantonly or willfully in injuring a flagrant trespasser; this applies regardless of whether the condition is an artificial condition, a natural condition or a condition resulting from the landowner s active conduct. Thus, a landowner/operator owes a duty of reasonable care to flagrant trespassers or trespassers for a natural condition only if they are in peril or helpless and unable to protect themselves. James A. Henderson, Jr., The Status of Trespassers on Land, 44 Wake Forest L.Rev (Winter 2009) B. Conclusion Although adopting a unitary duty standard of care owed by a landowner/operator to his or her land s entrants in accordance with Restatement (Third) seems to differ considerably from the status-based traditional rule of the Restatement (Second), the change should not have much impact on the majority of premise liability cases in the State of Illinois. Illinois has applied a unitary standard of care to invitees and licensees for many years, with only trespassers deserving a narrower standard of care. As to the flagrant trespasser issue, what the drafters really want is to give trial courts discretion to treat unprivileged trespassers differently based on differences regarding why those trespassers came onto the land; morally relevant differences that entitle some trespassers, but not others, to insist that possessors invest resources to protect them from harm. Id. Thus, Restatement (Third), when published, will likely have very little impact on the majority of premises liability cases in the State of Illinois. III. LEGISLATION Illinois House Bill 1899 and Illinois Senate Bill 1978 are both pending in the Illinois House and Senate s Rules Committees as of March Both are attempts to reenact and change provisions of the Premises Liability Act, 740 ILCS 130 et seq., that were added by Public Act 89-7 which was held to be unconstitutional in its entirety by the Illinois Supreme Court in Best v. Taylor Mach. Works, 179 Ill. 2d 367, 689 N.E.2d 1057, 228 Ill. Dec. 636 (1997). The reenacted provisions describe the duty of reasonable care owed to invited entrants by an owner or occupier of premises, and provide that an owner or occupier of land owes no duty of care to an adult trespasser other than to refrain from willful and wanton conduct that would endanger the safety of a known trespasser from a condition of the property or an activity conducted on the property. The proposed provisions would apply to causes of action accruing on or after the effective date of reenactment. The proposed legislation is consistent with the Restatement (Third) of Torts. E-7

9 IV. DUTY A premises-liability action is a negligence claim. See, Salazar v. Crown Enterprises, Inc., 328 Ill. App. 3d 735, 740, 767 N.E.2d 366, 262 Ill. Dec. 906 (1st Dist. 2002). The essential elements of a cause of action based on common-law negligence are the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. Ward v. Kmart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990). With respect to conditions on land, the scope of the landowner's or occupier's duty owed to entrants upon his premises traditionally turned on the status of the entrant. (Emphases added.) Ward, 136 Ill. 2d at 141. Traditionally, the liability of a landowner in Illinois has been delineated in terms of the duty owed to persons present on the land. (Emphasis added.) Lee v. Chicago Transit Authority, 152 Ill. 2d 432, , 605 N.E.2d 493, 178 Ill. Dec. 699 (1992). The operator of a business owed his invitees a duty to exercise reasonable care to maintain his premises in a reasonably safe condition for use by the invitees. Licensees and trespassers were owed narrower duties. The legislature abolished the distinction between invitees and licensees with the enactment of the Premises Liability Act (740 ILCS 130/1 et seq. (West 2004)) in Ward, 136 Ill. 2d at 141. A. No Duty Owed in Take Home Asbestos Exposure Case to Family Members Because Plaintiff Not an Entrant Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036, 909 N.E.2d 931, 330 Ill. Dec. 909 (2d Dist. 2009) Eva, the deceased, was married to Vernon and was John's mother. Vernon was employed by Aurora Equipment Co. ( Aurora ) in Aurora, Illinois, from 1968 to 1987, and John was employed from 1977 to Aurora painted, packaged, and sold steel manufactured items. Eva was never employed by Aurora and did not encounter any condition on Aurora's premises as a result of being an entrant onto those premises. According to plaintiffs' third amended complaint, Vernon and John were regularly exposed to asbestos fibers and dust at Aurora's facility, and those fibers and dust attached themselves to Vernon's and John's work clothing, which they wore home. Eva was around Vernon when he was wearing the contaminated clothing and she washed the clothes and breathed in the asbestos fibers and dust, thus becoming exposed. Plaintiffs alleged that, as a direct and proximate result of her exposure to asbestos from defendant's facility, Eva developed mesothelioma and colon cancer, which caused her death on January 9, Plaintiffs alleged that Aurora had a duty of ordinary care to provide a reasonably safe place for persons lawfully on property and to those who could foreseeably be harmed by dangerous conditions on [Aurora's] premises. Nelson, 391 Ill. App. 3d at Plaintiffs urged the Court to impose a duty on Aurora to guard against off-premises injury caused by airborne asbestos generated on Aurora's premises, because it was foreseeable that such exposure would cause injury and death. Aurora argued that the law imposes no duty because it had no relationship with Eva and, absent a relationship, foreseeability of injury was not relevant. The trial court found E-8

10 that Eva's injuries and death were foreseeable, but it held that to impose a duty would create a limitless number of potential plaintiffs, as literally anyone who came in contact with Vernon's and John's work clothes could be exposed. The plaintiffs in Nelson have not based their action against Aurora on the statute but on the common-law duty of a landowner or occupier toward an invitee to use reasonable care to maintain his premises in a reasonably safe condition. See, Ward, 136 Ill. 2d at 141. Because Eva was not an entrant on Aurora's land, and thus not an invitee, a licensee, nor a trespasser, her action had to fail. Premises is a house or a building along with its grounds. Black's Law Dictionary 1219 (8th ed. 2004). While Eva is alleged to have come into contact with the asbestos fibers and dust on Vernon's and John's work clothes, those fibers and dust were no longer a condition on Aurora's premises. Thus, the Court held that plaintiff s claims failed because the defendant cannot be liable under a theory of premise liability to a party that was never physically on its premises. B. Landowner Has Duty to Exercise Reasonable Care to Prevent Unreasonable Risk of Harm Arising from Trees Near a Roadway Eckburg v. Presbytery of Blackhawk of Presbyterian Church (USA), 396 Ill. App. 3d 164, 918 N.E.2d 1184, 335 Ill. Dec. 371 (2d Dist. 2009) This case was brought by a motorcyclist who was injured when a tree fell on him and his wife as they traveled along a rural state road adjacent to defendant s property. The tree killed the motorcyclist s wife. The complaint alleged the following: defendant owned some densely wooded property adjoining Illinois Route 2 in Ogle County. A number of rotted and otherwise defective trees on defendant s property were immediately adjacent to the edge of Route 2. Route 2 was a heavily traveled rural road that connected the cities of Rockford, Byron, Oregon, and Dixon. Defendant received actual notice one week prior to the accident that there were rotted trees on his property that posed a threat of falling onto the roadway. Plaintiff alleged that defendant owed a duty to him and to the general public to exercise reasonable care in the inspection and maintenance of the trees upon his property immediately adjoining the road. Further, defendant owed a duty to plaintiff and the general public to respond upon receipt of a complaint of trees that were defective and posed a danger. Defendant argued that section 363 of the Restatement (Second) of Torts, which is followed in Illinois, shielded it from liability. Section 363 provides: 363. Natural Conditions (1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. (2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable E-9

11 care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. (Restatement (Second) of Torts 363, at 258 (1965)) Eckburg, 396 Ill. App. 3d at 166. Defendant argued that because its land was not in an urban area, it could not be liable for plaintiff's injuries as a matter of law. The Appellate Court held that: (1) [the] rural nature of landowner's property was not dispositive in determining whether landowner had a duty to exercise reasonable care in maintaining trees abutting roadway; (2)... traditional negligence analysis applies in determining whether a landowner has a duty to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his trees on his land near a highway; and (3) motorcyclist sufficiently alleged that landowner had actual notice of dangerous condition of trees on his land so as to give rise to a duty to prevent an unreasonable risk of harm arising from condition of trees adjacent to roadway. Eckburg, 396 Ill. App. 3d at 164. C. Special Relations Giving Rise to Duty to Aid or Protect Owners of Indoor Football Arena Had a Duty to Protect Spectator Against an Unreasonable Risk of Injury Pickel v. Springfield Stallions, Inc., 398 Ill. App. 3d 1063, 926 N.E.2d 877, 339 Ill. Dec. 402 (4th Dist. 2010) Defendants were partners who operated a football team called the Springfield Stallions. The team played in the auditorium of the Springfield Convention Center, which defendants possessed and controlled for that purpose. Defendants invited the public to attend these indoor football games and charged an admission fee, which defendants divided among themselves. On April 14, 2007, plaintiff went to the Convention Center, paid the admission fee, and entered the auditorium to watch a Springfield Stallions football game. She was situated in an area designated by [defendants] for spectators to sit or stand [in] and view the football game. Pickel, Ill. App. 3d at A wall, provided by defendants, separated plaintiff and other spectators from the playing field. The purpose of this wall, plaintiff alleges, was to protect spectators from being struck by football players during the game. During the game, a player unexpectedly fell over the wall from the playing field to the spectator area and came into sudden and violent contact with the plaintiff. Id. at Plaintiff filed suit alleging that the defendant (1) encouraged plaintiff and other spectators to sit or stand in an area that was dangerously close to the playing field; (2) failed to warn plaintiff and other spectators of the danger of being in this designated area; and (3) failed to erect a wall that E-10

12 was high enough and sturdy enough to protect plaintiff and other spectators from being hit by football players during the game. In its analysis, the Appellate Court stated that Illinois law has long recognized that certain special relationships may give rise to a duty to protect another against an unreasonable risk of physical harm. The Restatement (Second) of Torts sets forth these special relationships. Marshall, 222 Ill. 2d at 438. That section provides as follows: 314A. Special Relations Giving Rise to Duty to Aid or Protect (1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. (2) An innkeeper is under a similar duty to his guests. (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation. (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other. Restatement (Second) of Torts 314A, at 118 (1965). Comment d states that [t]he duty to protect the other against unreasonable risk of harm extends to risks arising out of the actor's own conduct, or the condition of his land or chattels. It extends also to risks arising from * * * the acts of third persons, whether they be innocent, negligent, intentional, or even criminal. Restatement (Second) of Torts 314A, Comment d, at 119 (1965). After comparing the Restatement (Second) to the facts of this case, the Appellate Court held that the defendant team owners had a special relationship with the injured spectator, their invitee. This relationship obliged them to take reasonable action to protect her against an unreasonable risk of injury either from the conduct of their agents (the players) or the conduct of third persons. The Court further found that the plaintiff had not assumed the risk of injury. Pickel, 398 Ill. App. 3d at D. Criminal Attack Special Relations and the Voluntary Undertaking Doctrine Landlord Had No Duty to Protect Tenant From Criminal Activities by Third Persons Despite Having a Special Relationship with Plaintiff Sanchez v. Wilmette Real Estate and Management Co., 404 Ill. App. 3d 54, 934 N.E.2d 1029, 343 Ill. Dec. 426 (1st Dist. 2010) Tenant at apartment complex filed suit against owners of apartment building and property manager after plaintiff was attacked by an unknown individual who exited a vacant apartment. Testimony in the case indicated that the both the front and back doors to the vacant apartment were opened and unlocked. Defendant filed a motion for E-11

13 summary judgment. The trial court granted the motion, finding that there existed no duty and no special relationship with the plaintiff. Generally, a landowner has no duty to protect others from criminal activities by third persons. However, a duty to protect others from criminal activities by a third person does exist where there is a special relationship between the parties. See, Rowe v. State Bank of Lombard, 125 Ill. 2d 203, , 531 N.E.2d 1358, 126 Ill. Dec. 519 (1988). Illinois courts have recognized four categories of special relationships that may give rise to a duty to protect an individual from criminal activities by third person, including: (1) common carrier and passenger; (2) inn-keeper and guest; (3) custodian and ward; and (4) business invitor and invitee. However, before a duty will be imposed, the plaintiff must demonstrate that the criminal attack was reasonably foreseeable. See, Hills v. Bridgeview Little League Ass n, 195 Ill. 2d 210, , 745 N.E.2d 1166, 253 Ill. Dec. 632 (2000). The Illinois Supreme Court has repeatedly held that the simple relationship between a landlord and tenant... is not a special one imposing a duty to protect against the criminal acts of others. Rowe, 125 Ill. 2d at 216. However, a landlord may be responsible for the criminal acts of others if the landlord has voluntarily undertaken to provide security measures, it performs the undertaking negligently, and the negligence is the proximate cause of the injury to the plaintiff. One who voluntarily provides a service must do so with reasonable care. Id. at 217. In accord with these principles, section 324A of the Restatement (Second) of Torts, provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if: (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts 324A (1965). The comments to subsection (c) provide: Where the reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk. In this case, there was no evidence that the defendants had a contract to provide building security or agreed to be responsible for protecting the plaintiff from the criminal acts of third parties. Nor did the defendants voluntarily undertake to provide security measures to protect the plaintiff from criminal acts of third persons. The defendants nevertheless exercised reasonable care because the building hallway was well-lit and plaintiff testified that he had to use his key to gain entry into the building on the night in question. E-12

14 The Court further held that the criminal attack was not reasonably foreseeable because the vacant apartments were routinely locked, no similar criminal attacks had occurred, and a third party had not been found in one of the apartments on a prior occasion. Similarly, the promise to maintain door locks in working condition does not rise to a voluntary undertaking to protect tenants from criminal activity. Accordingly, the Fourth District held that the trial court did not err when it granted the defendants motion for summary judgment. E. Recreational Use Doctrine and Act Recreation Association and Coach Immune From Premises Liability After Spectator Hit with Ball at Baseball Game Vaughn v. Barton, 402 Ill. App. 3d 1135, 933 N.E.2d 355, 342 Ill. Dec. 769 (5th Dist. 2010) Plaintiff, Debbie Vaughn, was sitting in the bleachers watching her young son play in a baseball game organized by defendant recreation association when she was struck in the eye by a baseball thrown by an 11-year-old boy who was warming up for the next game. Plaintiff filed suit against the recreation association and unpaid coach, whose son threw the ball that struck the plaintiff. The trial court granted directed verdict for the defendants holding that the Recreational Use Act, 745 ILCS 65/1 et seq. (West 2002), gave immunity to the defendants. The purpose of the Recreational Use Act is to encourage owners of land to make land and water areas available to the public for recreational or conservation purposes by limiting their liability toward persons entering thereon for such purposes. The Act immunizes landowners from negligence liability with respect to any person who enters the landowner s property for, among other things, exercise, education, relaxation, or pleasure. See, Hall v. Henn, 208 Ill. 2d 325, 331, 802 N.E.2d 797, 280 Ill. Dec. 546 (2003). Under the Act, owners are only liable under two circumstances: for willful and wanton failure to guard or warn against a dangerous condition, use, structure or activity or for any injury where the owner of the land charges the person or persons who enter or go on the land for recreational use. Charge means an admission fee for permission to go upon the land, but it does not include, inter alia, benefits to or arising from the recreational use or contributions in kind, services or cash made for the purpose of properly conserving the land. 745 ILCS 65/1 et seq. (West 2002). It was undisputed that no admission fees were charged to watch the games in this case. However, each child was charged a $35 fee to play in the league to defray costs associated with running the league. The Fifth District affirmed the directed verdicts for the defendants. The Court reasoned that the $35 fee did not remove the immunity provided to the defendants by the Recreational Use Act. Further, the fact that the 11-year-old boy was warming up in an unsafe location (i.e. he was not warming up within the physical confines of the baseball diamond), did not amount to willful and wanton activity by the defendants that could jeopardize their immunity under the Act. E-13

15 V. SLIP & FALL CASES A. The Open and Obvious Exception and the Exceptions to the Exception Summary Judgment for Premises Owner Despite Plaintiff Tripping on Empty Pallet Because Risk Was Open and Obvious. Further, the Distraction Exception and Deliberate Encounter Exception Did Not Apply. Klieber v. Freeport Farm and Fleet, Inc., 406 Ill. App. 3d 249, 942 N.E.2d 640, 347 Ill. Dec. 437 (3d Dist. 2010) On May 2, 2008, plaintiff and her husband were shopping at the Farm and Fleet store in Morton, Illinois, and were starting to load bags of topsoil into their vehicle from a pallet located outside the front of the store. To obtain the bags of topsoil, plaintiff and her husband walked across an empty wooden pallet that was lying on the ground. After plaintiff picked up a bag of topsoil and turned to go back across the pallet to the vehicle, her foot went through one of the slats in the pallet. As a result, plaintiff twisted her leg, fell, and was injured. She filed suit. Under the Premises Liability Act, the owner or lessee of premises owes a duty of reasonable care under the circumstances' to those lawfully on the premises. Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43, 768 N.E.2d 46, 51, 263 Ill. Dec. 286 (1st Dist. 2002), quoting 740 ILCS 130/2 (West 2000). In a situation where a plaintiff alleges that an injury was caused by a condition on the defendant's property, and the plaintiff was an invitee on the property, whether the injury is reasonably foreseeable is determined pursuant to section 343A of the Restatement (Second) of Torts. Section 343 of the Restatement provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts 343 (1965). An exception to this general rule, known as the open and obvious danger rule, is set forth in section 343A of the Restatement. It provides: A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts 343A(1). The open and obvious danger rule recognizes that it is not foreseeable to a possessor of land that an invitee will be injured when the condition or danger is open and obvious. See, Buerkett, E-14

16 384 Ill. App. 3d 418, 422, 893 N.E.2d 702, 323 Ill. Dec. 430 (4th Dist. (2008). The rule nevertheless has two limited exceptions that may apply under certain circumstances when the possessor of land has reason to anticipate that an injury will occur to an invitee, despite the open and obvious nature of the danger. The first exception is the distraction exception. Restatement (Second) Torts 343A, Comment f (1965); Ward v. K Mart, 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990). Foreseeability will be found where a landowner knows or should know an entrant may be distracted. Buerkett, 384 Ill. App. 3d at 423. Under the distraction exception, the open and obvious danger rule will not apply if the possessor of land has reason to anticipate or expect that his invitees' attention will be distracted such that the invitee will fail to discover the open and obvious danger or will forget about the danger or will fail to protect himself from the danger. Restatement (Second) Torts 343A, Comment f (1965); Ward, 136 Ill. 2d at , 554 N.E.2d at , 143 Ill. Dec. 288 (1990). A determination of whether the distraction exception applies requires a court to look beyond whether a condition is open and obvious and to examine whether a defendant should have foreseen that a plaintiff was or could be distracted or forgetful. Buerkett, 384 Ill. App. 3d at 424. The second exception to the open and obvious danger rule is the deliberate-encounter exception. Restatement (Second) Torts 343A, Comment f (1965); LaFever v. Kemlite, 185 Ill. 2d 380, 391, 706 N.E.2d 441, 448, 235 Ill. Dec. 886 (1998). Under the deliberate-encounter exception, the open and obvious danger rule will not apply if the possessor of land has reason to expect that the invitee will proceed to encounter an open and obvious danger because to a reasonable person in the invitee's position the advantages of doing so outweigh the apparent risk. Restatement (Second) Torts 343A, Comment f (1965); LaFever, 185 Ill. 2d at 391. The deliberate-encounter exception recognizes that individuals will make deliberate choices to encounter hazards when faced with employment concerns and that those encounters are reasonably foreseeable by possessors of property. See, LaFever, 185 Ill. 2d at 394. As with the distraction exception, the focus with the deliberate-encounter analysis is on what the landowner anticipates or should anticipate the entrant will do. Buerkett, 384 Ill. App. 3d at 424. Although the focus with both the distraction exception and the deliberate-encounter exception is on what the landowner anticipates or should anticipate the entrant will do, that is not to say that the burden of proof shifts to the landowner defendant. Plaintiff retains the burden of proof. See, Illinois Pattern Jury Instructions, Civil, Nos , (2006). In the present case, as noted above, there is no question that the danger posed by the empty pallet was an open and obvious danger. The primary question before the Court was whether, as a matter of law for summary judgment purposes, it was clear that neither of the two exceptions to the open and obvious danger rule applied in the present case. Having reviewed the record that was before the trial court, the Court concluded that there was no genuine issue of material fact as to either exception and that, as a matter of law, it was clear that neither exception applied in the instant case. E-15

17 B. How Is the Open and Obvious Exception Applied to a Minor Who Falls on Home Exercise Equipment? Qureshi v. Ahmed, 394 Ill. App. 3d 883, 916 N.E.2d 1153, 334 Ill. Dec. 265 (1st Dist. 2009) Plaintiff, the father of a 10-year-old girl, brought a premises liability action against the defendant homeowner, after his daughter slipped and fell on a treadmill at defendant s home. Plaintiff s daughter tried to break her fall, and her right hand got caught in between the base of the treadmill and the moving belt. The treadmill did not stop running and her hand was degloved. Her hand required surgery including skin grafts, multiple stitches, and ongoing physical therapy. The issue presented a case of first impression: whether a piece of home exercise equipment poses an open and obvious danger to a child. Injury by fire, water, and falling from heights are considered open and obvious dangers, appreciable by very young children, as a matter of law. Mount Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 118, 660 N.E.2d 863, 214 Ill. Dec. 156 (1995). Since the 1955 Illinois Supreme Court decision in Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955), a duty, which would not be imposed in ordinary negligence, will be imposed upon the owner or occupier of land if such a person knows or should know that children frequent the premises and if the cause of the child's injury was a dangerous condition on the premises. See also Mount Zion, 169 Ill. 2d at , Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326, 383 N.E.2d 177, 22 Ill. Dec. 701 (1978). The line of reasoning following Kahn, however, does not mean that the law imposes a duty on owners and occupiers of land to remedy conditions that pose obvious risks that children generally would be expected to appreciate and avoid. Mount Zion, 169 Ill. 2d at 117, Corcoran, 73 Ill. 2d at 326. It is the reasonable foreseeability of harm that determines liability in negligence actions involving children. Cope v. Doe, 102 Ill. 2d 278, 286, 464 N.E.2d 1023, 80 Ill. Dec. 40 (1984). While certainly there are latent dangers that a child would not appreciate due to his minority, a possessor of land is free to rely upon the assumption that any child old enough to be allowed at large by his parents will appreciate certain obvious dangers or at least make his own intelligent and responsible choice concerning them. Mount Zion, 169 Ill. 2d at 117; citing W. Keeton, Prosser & Keeton on Torts, 59, at 407 (5th ed. 1984). A danger is considered obvious if the condition and the attendant risk of harm are apparent to and would be recognized by a reasonable person or child exercising ordinary perception, intelligence, and judgment. Restatement (Second) of Torts 343A, Comment b (1965). When a child is injured, however, courts recognize that it may be foreseeable that the child, due to immaturity, will not fully appreciate the risk involved in encountering what to an adult is an open and obvious danger. The test is whether a typical child who is old enough to be at large would lack the maturity to understand and appreciate the risk involved, therefore making it foreseeable that a typical child might be injured. Grant v. South Roxana Dad's Club, 381 Ill. App. 3d 665, 670, 886 N.E.2d 543, 319 Ill. Dec. 780 (5th Dist. 2008). The issue in cases involving E-16

18 obvious dangers, like fire, water or height, is not whether the child does in fact understand, but rather what the possessor may reasonably expect of him. Mount Zion, 169 Ill. 2d at 120, citing W. Keeton, Prosser & Keeton on Torts, 59, at 407 (5th ed. 1984); M. Polelle & B. Ottley, Illinois Tort Law (2d. 1994). The test is an objective one based in part on the idea that parents bear the primary responsibility for safeguarding their children and it is reasonable to expect that a child who is permitted to be at large, beyond the watchful eye of his parents, can appreciate certain particular dangers. Mount Zion, 169 Ill. 2d at The ability of children to appreciate the danger is not the only issue in determining whether a duty exists. In order to find that a landholder owes a duty to a child injured on its premises, a court must also find that (1) a dangerous condition exists on the property, (2) it is reasonably foreseeable that children would be present on the premises, and (3) the risk of harm to children outweighs the burden of removing the danger. Grant, 381 Ill. App. 3d at 670, citing Mt. Zion, 169 Ill. 2d at , citing Kahn, 5 Ill. 2d at 625. The First District Appellate Court in this case held that summary judgment should not have been granted for the homeowners because it was reasonably foreseeable that children would play on the treadmill and the burden of imposing a duty on the defendants to guard against this foreseeable injury was slight. Further, public policy dictates that with the proliferation of home exercise equipment that proper instruction and supervision will become even more important to protect the safety of children. The Court relied heavily on the fact that the homeowners could have removed the key that operated the treadmill so that the injury could have been avoided. C. Snow and Ice Removal Act Immunity Provided by the Act Does Not Apply to Driveways Even If Primary Ingress and Egress to Premises Gallagher v. Union Square Condominium Homeowner s Ass n, 397 Ill. App. 3d 1037, 922 N.E.2d 1201, 337 Ill. Dec. 624 (2d Dist. 2010) A condominium owner brought a negligence action against the condominium association and a snow removal services company for damages arising out of injuries allegedly sustained when the owner slipped and fell on an icy driveway at the condominium complex. The circuit court granted the defendant s motion to dismiss pursuant to the Snow and Ice Removal Act, 745 ILCS 75/1, and the plaintiff appealed. Section 2 of the Snow and Ice Removal Act provides: Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton. 745 ILCS 75/2 (West 2008). This immunity from liability is intended to further the public policy articulated in section 1 of the Act: E-17

19 It is declared to be the public policy of this State that owners and others residing in residential units be encouraged to clean the sidewalks abutting their residences of snow and ice. The General Assembly, therefore, determines that it is undesirable for any person to be found liable for damages due to his or her efforts in the removal of snow or ice from such sidewalks, except for acts which amount to clear wrongdoing, as described in Section 2 of this Act. 745 ILCS 75/1 (West 2008). Plaintiff argued that the Act does not apply to his claims, because it only immunizes against those injuries sustained on sidewalks and not those sustained on driveways. Defendants countered that, because plaintiff was walking on the driveway at the time he fell and because the driveway was the primary means of ingress and egress to and from plaintiff's unit, the driveway was sufficiently akin to a sidewalk to come within the scope of the Act. Accordingly, the question before the Court was whether the use of the word sidewalk in section 2 of the Act includes driveways. The Appellate Court ultimately held that the condominium driveway was not a sidewalk within the meaning of the Act. The trial court was reversed and the matter was remanded. D. Slip and Fall The Distraction Exception to the Open and Obvious Exception 1. Fall on Sidewalk of Apartment Complex While Carrying Groceries Distraction Exception Does Not Apply Because Distraction Solely Caused by Plaintiff Lake v. Related Management Co., L.P., 403 Ill. App. 3d 409, 936 N.E.2d 704, 344 Ill. Dec. 175 (4th Dist. 2010) Plaintiff filed a negligence action against the owners and property management group for her apartment complex when she tripped and fell when the heel of her boot got caught in a gap in the sidewalk in the front entry of her apartment complex. She testified that she had been aware of the defect in the sidewalk for the past three years and had complained about its existence. Plaintiff was carrying two bags of groceries at the time and claimed that she was distracted. Defendant filed a motion for summary judgment which the trial court granted because plaintiff did not dispute that the defect in the sidewalk was open and obvious. However, plaintiff appealed because she claimed that the distraction exception applied and that defendants cannot be relieved of liability when she was injured by the dangerous condition while distracted by the act of carrying groceries. Lake, 403 Ill. App. 3d at 411. The Fourth District affirmed, explaining that the distraction exception would apply and sustain a property owner s duty of due care if there is a reason to expect that the invitee s attention may be distracted so that he or she would not discover what is obvious, or would forget what he or E-18

20 she has discovered, or would fail to protect himself or herself against it. Id. at , citing Rexroad v. City of Springfield, 207 Ill. 2d 33, 44-45, 796 N.E.2d 1040, 277 Ill. Dec. 674 (2003). In order for the distraction to be foreseeable to the defendant so that the defendant can take reasonable steps to prevent injuries to invitees, the distraction must not be solely within the plaintiff s own creation. Whittleman v. Olin Corp. 358 Ill. App. 3d 813, , 832 N.E.2d 932, 295 Ill. Dec. 482 (5th Dist. 2005). Here, the plaintiff s carrying of groceries was a distraction exclusively of her own creation. Defendant could not be held liable for plaintiff s choice when it cannot be said that the defendant created, contributed to, or [was] responsible in some way for the distraction which diverted the plaintiff s attention from the open and obvious condition. Lake, 403 Ill. App. 3d at Fall On Parent s Front Steps After Eating, Studying, Watching Television and Napping Distraction Exception Does Not Apply Hope v. Hope, 398 Ill. App. 3d 216, 924 N.E.2d 581, 338 Ill. Dec. 375 (4th Dist. 2010) Here, the adult daughter of the defendants brought a premises liability action against her parents when she slipped and fell on some mud that had accumulated on the porch steps to her parents house. She had been warned by both her mother and father about the mud on the steps; however, defendants had failed to remove the mud. Plaintiff then fell as she descended the steps and claimed that she was distracted because she had been eating, studying, watching television and sleeping between the time of the warnings and the time that she slipped and fell. The trial court and Fourth District both affirmed summary judgment for the parents and held that the distraction exception did not apply to the open and obvious doctrine in this case. Of significance, the issue to the Court was not whether the plaintiff was distracted at the time of the fall but whether a defendant would have reason to expect that the plaintiff would be distracted. The Court held that the defendants could not have reasonably foreseen that eating, studying, watching television and sleeping would create a distraction leading to the plaintiff s injury. If such mundane activities, undertaken at a different location than the place of the injury, were sufficient to invoke the distraction exception, then the exception would swallow the rule. E. Slip and Fall at Construction Site Distraction and Deliberate Encounter Exceptions Do Not Apply to Construction Worker Who Fell While Talking on His Cell Phone as He Was Familiar with Ruts at Construction Site Wilfong v. L.J. Dodd Const., 401 Ill. App. 3d 1044, 930 N.E.2d 511, 341 Ill. Dec. 301 (2d Dist. 2010) Plaintiff had worked on construction sites for over 20 years. He fell on the defendant s construction site while employed by a subcontractor, claiming that there was an excessive number of ruts made by construction vehicles. Plaintiff was talking on his cell phone at the time of the fall. The trial court granted summary judgment for the defendants holding that, generally, defendants had a duty to plaintiff to protect against the harm caused by unreasonably dangerous conditions caused by ruts, mud and water on the construction site, although the exception to such duty exists where the danger was open and obvious. E-19