Ask ten defense attorneys and claims examiners if something is open and obvious and 9 times out of 10 we will all say “Yes, of course.”  Unfortunately, judges, juries and plaintiffs’ attorneys don’t usually agree with us.

Let’s talk about what the law considers to be open and obvious dangerous conditions and the exceptions to this doctrine.

Open & Obvious Doctrine – The Law

• A business has no duty to protect against injuries from potentially dangerous conditions that are open and obvious. Prostran v. City of Chicago, 349 Ill.App.3d 81, 85 (1st Dist. 2004); Kleiber v. Freeport Farm and Fleet, Inc., 406 Ill.App.3d 249, 257 (3rd Dist. 2010).
• Open and obvious conditions exist when a reasonable person, exercising ordinary perception, intelligence and judgment, would recognize the risk objectively apparent from the condition. Sandoval v. City of Chicago, 357 Ill.App.3d 1023, 1028, (1st Dist. 2005).
• Where open and obvious conditions exist, business owners are entitled to expect that those who enter their establishment will exercise reasonable care for their own safety. Id.
• Consequently, “no duty to warn or protect may be imposed upon a defendant where the danger is open and obvious.” Id.
• Businesses have no duty to anticipate a plaintiff’s own inattention to an obvious condition would cause her injury. Richardson v. Vaughn, 251 Ill.App.3d 403, 408-409 (2nd Dist. 1993).
• Storeowners have no duty to render their premises injury-proof, and are entitled to the expectation that their patrons will exercise reasonable care for their own safety. Id.; Sandoval, 357 Ill.App.3d at 1028.

Exceptions To The Rule

As always, there are exceptions to the rule and here, the exceptions are the distraction and  deliberate encounter.  Bonner v. Chicago, 334 Ill.App.3d 481, 484 (1st Dist. 2002).

The distraction exception applies only where the premises owner in some way creates, contributes to, or is responsible for the distraction that diverts the patron’s attention.  Sandoval, 357 Ill.App.3d at 1031.  At the very least, it requires some showing of a circumstance that required the patron to focus her attention on some other condition or hazard.  Id. at 1028.

Under the deliberate encounter exception, “the open and obvious rule is inapplicable if the landowner has reason to anticipate or expect the invitee will proceed to encounter an open and obvious condition because the advantages of doing so outweigh the apparent risks to a reasonable person in the invitee’s position.  See, Garcia v. Young, 408 Ill.App.3d 614, 617-618(4^th Dist. 2011); Kleiber, 406 Ill.App.3d at 257.

We all know that every case is different and anything can happen at any time.  That being said, here are some examples of what types of conditions have been found to be open and obvious, and examples of distractions and deliberate encounters.

Examples of Open & Obvious Dangerous Conditions

• Spill of salsa on white floor
• Pallet on floor
• Floor mat partially flipped over
• Gap on surface of street or sidewalk
• Bicycle laying on floor in hallway
• Diving into natural body of water
• Driving with bare foot hanging out window
• Jumping on trampoline

Examples Of Accepted Distractions

• Looking at product on shelves
• Carrying large item out of store
• Looking at signs hanging in store
• Walking in parking lot with items and step in pot hole

Examples Of Actions Not Considered Proper Distractions

• Talking on cell phone or texting/emailing
• Walking backwards and not looking where going
• When plaintiff knew about defect and chose to walk on it
• Not looking where going – and what plaintiff is looking at has nothing to do with the defendant

Examples of Deliberate Encounters

• Plaintiff went up a steep, snow covered incline but that was the only route that could be taken
• Plaintiff encountered a work area covered with very slick materials
• Plaintiff used an unsecured and unprotected stairwell

Knowing examples of what types of conditions the courts have found to be open and obvious, and when courts tend to apply the exceptions, helps all of us when evaluating new incidents.  If you need any case law support for the above examples, please let me know.

photo credit: <a href=”https://www.flickr.com/photos/timzim/2308099322/”>Tim Zim</a> via <a href=”http://photopin.com”>photopin</a> <a href=”http://creativecommons.org/licenses/by-nc/2.0/”>cc</a>