Another holiday season is upon us and that means it’s time for a HOLIDAY HYPOTHETICAL!

Hypothetical:

It’s 7am on Saturday, the day before Easter Sunday.  Happy Food Market is getting ready for its annual Easter Egg Hunt.  Kids of all ages are lined up, ready to search for colorful plastic eggs filled with tasty treats.  The store taped off 5 different grocery aisles for this ever-popular and highly publicized event.  Each row is filled with eggs both on the floor and on the shelves.

To start the event off, the store manager gets on the store loud-speaker and announces the rules.  Kids are lined up in front of each aisle, ready to attack.

Seconds before the beasts are unleashed, a cranky old lady (Mrs. Grouch) lifts up the tape at the back of a grocery aisle and ducks under, refusing to let anything keep her from the cans of Spam.  Mrs. Grouch takes 5 steps into the aisle and then trips and falls over a bright orange plastic egg on the floor.  Jelly beans fly everywhere and Mrs. Grouch’s left hip cracks down the middle.

Is Happy Food Market liable for this incident or is summary judgment likely to be granted?

Analysis:

Assume this incident took place in Cook County, Illinois.  Now let’s look at the case from both the plaintiff’s and defendant’s perspective and see what each would argue.

Plaintiff’s Attorney’s Perspective

The plaintiff is likely to allege that the aisle was not properly barricaded.  Since the plaintiff was able to lift up the tape and walk in the aisle, there was not sufficient warning of a dangerous condition.  The plaintiff will also argue that the store caused a highly dangerous condition, and therefore, it is liable.  Finally, in anticipation of an open and obvious defense, the plaintiff will assert that she was distracted, earnestly looking for a can of Spam, so she did not notice the aisle was covered in colorful plastic eggs.

Defense Attorney’s Perspective

The open and obvious doctrine is clearly the best way to defend this case.  The defense will argue that the tape blocking the aisle was open and obvious and then once in the aisle, the bright colored eggs all over the floor and shelves were open and obvious.  The store will have a photograph showing how the aisle appeared just after the incident, with eggs everywhere.  There will also be store surveillance footage showing the plaintiff stop, look down the aisle, lift up the tape and walk into the aisle.

The defense will argue that the distraction exception does not apply.  The evidence shows the plaintiff was fully aware of the tape blocking the aisle because she lifted it up and went under it.  Five steps later she fell.  There was not enough time for the plaintiff to get distracted and “forget” about the eggs in five steps.

Answer:   

Even though this seems like a slam dunk summary judgment motion for the defense, in Cook County, Illinois it could depend on which type of court you are in and your judge assignment.  Even so, without knowing those factors, I would give this motion a 70-90% chance of success.

Happy Easter & Passover!