Open and Obvious Stairwell

 

On November 8, 2004, plaintiff, Donald Van Gelderen, was at defendant, David Hokin’s home, installing automated window coverings.  As Van Gelderen was leaving the house, he fell down a flight of stairs inches away from the front door, and was injured.   A jury found the stairs were an unreasonably dangerous condition.  The jury found that Van Gelderen was 50% contributorily negligent, reducing the final award to about 1.5 million. Defendant filed a motion for judgment notwithstanding the verdict.  The motion was denied, and the defendant appealed. 

 The appellate court affirmed.  Van Gelderen v. Hokin, 2011 IL App (1st) 093152.  The court distinguished the case of Alcorn v. Stepzinski.  185 Ill. App. 3d 1 (1989).  The court in Alcorn held that while all stairs present some risk of harm, the risk of harm must be shown to be unreasonable to give rise to a duty of care.  The configuration of a stairway may be dangerous only if the stairway configuration masks or obscures the stairs in a way which prevents the invitee from becoming aware of the open and obvious configuration.  The appellate court, here, concluded that the Alcorn court’s decision heavily relied on the plaintiff’s failure to present expert testimony. 

 Hokin argued that there was no evidence that the stairwell was improperly designed, masked, or obscured.  However, the court said the Van Gelderen did present expert testimony that the stairwell was unreasonably dangerous.  The court held that this evidence was sufficient to support the jury findings.  The defendant also argued that the stairwell was an open and obvious condition. However, the appellate court concluded that the evidence fell short of establishing the condition was open and obvious as a matter of law. 

 A condition presents an open and obvious danger to the extent the risk is apparent to, and is appreciated by a reasonable person in the person’s exercise of ordinary perception, intelligence and judgment.  Plaintiff’s testimony that he did not see the condition presented a question of fact, precluding the court from finding an open and obvious condition.

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