One of the most difficult and frustrating defenses available to property owners/users in Illinois is the “Open & Obvious Doctrine”. I find it difficult and frustrating because not only is it extremely subjective but the two exceptions to it, distraction and deliberate-encounter, make it close to useless.  A recent appellate court case explains my point.

In Atchley v. University of Chicago Medical Center, 2016 IL App (1st) 152481 (Sept. 28, 2016) a delivery vendor went to the hospital to deliver two pallets of product.  After backing into the delivery space, the plaintiff discovered the dock leveler, which raised the dock to the height of the truck, was inoperable.  No other dock areas were open so rather than wait, the plaintiff lowered his truck as much as possible but there was still a small gap.  The plaintiff used a motorized pallet jack to unload his truck but the jack became stuck in the gap.  The plaintiff became injured while using a steel dolly in an attempt to free the jack.

The circuit court granted summary judgment for the hospital, ruling the danger was open and obvious so the hospital had no duty and the court ruled the inoperable leveler was not a proximate cause of the plaintiff’s injuries. The plaintiff appealed and the appellate court reversed the circuit court’s ruling.

The open and obvious doctrine pertains to whether the defendant owed a duty to the plaintiff. The court summarized the open and obvious doctrine:

• Under the doctrine, a party which owns or controls land is not required to foresee or protect against injury where the potentially dangerous condition is open and obvious. Bruns v. City of Centralia, 2014 IL 116998, ¶ 16.
• An open and obvious danger does not automatically eliminate a legal duty on the defendant’s part. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 449 (1996).
• Instead, the existence of an open and obvious dangerous condition affects the first two factors relevant to assessing duty: the reasonable foreseeability and likelihood of the injury. Bruns, 2014 IL 116998, ¶ 19.
• Obviousness requires that a reasonable person in the visitor’s position, exercising ordinary intelligence, perception and judgment, would recognize both the condition and the risk. Bruns, 2014 IL 116998, ¶ 16.

One of the two exceptions to the open and obvious doctrine is deliberate-encounter, and that was the exception utilized by the plaintiff in this case.   The deliberate-encounter exception applies where the possessor of land had reason to anticipate that the invitee would proceed to encounter an open and obvious danger because a reasonable person in the invitee’s position would find the advantages of the encounter outweigh the apparent risk. Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 258 (2010). “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 a property.” Id.  Similarly, the deliberate-encounter exception usually involves a plaintiff who is forced to choose between facing danger and neglecting his duties. Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶ 42.

The appellate court relied on the case law above to determine the deliberate-encounter exception applied because the hospital expected early deliveries. The court also noted the record supported the plaintiff’s assertion that the hospital had a duty because it was reasonably foreseeable that, in the course of his employment, a driver would attempt to make a delivery at the dock despite the broken leveler.  Additionally, the court found it was foreseeable that a driver who had never faced a broken leveler would be unaware that even a small gap could create a problem and that an insidious increase in height differential would occur after goods were removed.

So what is the lesson learned from this opinion, if something in a delivery area is broken the area should be closed to deliveries or fixed quickly. Based on this case, warning the delivery worker of the level being broken is likely irrelevant because the plaintiff was fully aware it was broken and the hospital was still responsible for his questionable behavior.  It is as if the court was treating the plaintiff as an employee of the hospital, rather than a vendor.