Deliberate Counter Exception

The plaintiff,  Paul Swearingen, was a truck driver, who delivered a tanker full of chemicals to the defendant, Momentive Specialty Chemicals  Swearingen parked in the unloading bay, and Momentive asked him to open the dome lid on the top of his truck.  No one from Momentive was present to provide instructions to Swearingen.  Swearingen admitted that his employer had trained him to retain three points of contact on the truck when opening the lid.  He was aware that he was not wearing a safety harness, and  that there was a low, exposed fire suppression system pipe.  Nevertheless, Swearingen climbed on top of the truck stood up, hit is head on the pipe, fell and was injured.      


Swearingen’s complaint alleged  that Momentive breached its duty by failing to warn him of the risk associated with the pipe and by failing to provide him with a fall protection harness.  Generally, a landowner owes a business invitee “the duty of exercising ordinary and reasonable care to see that the premises are reasonably safe.”  Momentive’s motion for summary judgment was granted after it had argued that the hazard was “open and obvious” and that Momentive had no duty to Swearingen. 


On appeal, Swearingen argued in response to the “open and obvious” condition that the “deliberate encounter exception” should have been applied.  The 7th Circuit disagreed and affirmed the district court decision.  Swearingen v. Momentive Specialty Chemicals Inc., No. 11-2088  (Dec. 7, 2011).  "Under that exception, even if an invitee harms himself on an open and obvious hazard, the landowner may still be liable if he had reason to expect that the invitee would deliberately encounter the hazard because the advantages of doing so outweigh the apparent risk to a reasonable person."  The court explained, here, Swearingen had been trained by his employer in the correct way to open the lid; however, he did not open it correctly.  Overall, there was no evidence that Momentive had reason to expect that Swearingen would have climbed up to deliberately encounter the pipe in such a way.  The court concluded, under Illinois law, that Momentive did not have a duty because the injury was neither foreseeable nor likely, and the burden on the defendant to guard against the injury would be substantial. 


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