General Liability Defense : Chicago General Liability Lawyer & Attorney : Mark McAndrew : Hennessy & Roach Law Firm : Civil Defense Litigation, Damages : Illinois, Wisconsin, Midwest

The plaintiff,  Paul Swearingen, was a truck driver, who delivered a tanker full of chemicals to the defendant, Momentive Specialty Chemicals ww2.momentive.com/home.aspx.  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 7^th 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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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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In the case of Salerno v Innovative Surveillance Technology Inc., the plaintiff, an investigator in the narcotics technical field operations unit of the Cook County state's attorney office, filed suit against the manufacturer of the van in which the plaintiff was working. The van contained a variety of surveillance equipment, to include a video periscope system. The plaintiff tried to stand up in the van andd struck his head on the periscope. The defendant file a motion for summary judgment arguing the persicope was open and obvious. The trial court agreed and granted the motion.

The Appeals Court said that the trial court erred in dismissing the case solely on the open and obvious doctrine. The plaintiff argued that the ruling was incorrect because of the of the "distraction" and "deliberate encounter" exceptions.  The court dismissed this argument as the Supreme Court had previously ruled that these exceptions only applied to premises liability cases and had "no basis whatsoever" in products liability cases. The appeals court explained that Illinois courts have expressly rejected the notion that a products's open and obvious risk of harm is an absolute defense to a defective design theory of strict liability.

The Appeals Court further explained that the plaintiff waived his negligent design defect claim on appeal when in his reply brief when he conceded "there [is] nothing to criticize in [IST's] design [of the IST-6000 van]." This constituted a waiver of his negligence claim just as it did with respect to his strict liability claim. As there was no evidence to support his negligence claim, summary judgment was proper.

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Recently I did a video summarizing a case where a store was granted a Motion for Summary Judgment based upon the Open and Obvious doctrine. www.hennessyroach.com/updates/mcandrew_fleet_update.html Unfortunately they are not always that easy, see below:

On September 25, 2001, plaintiff, Carlota Alqadhi, tripped and fell over raised concrete while leaving a parking garage owned by defendant Center at River East LLC and run by defendant Standard Parking. She alleged she tripped because defendants failed to mark a 3/4 inch rise in concrete of a wheelchair -accessible ramp. Defendants filed a motion for summary judgment arguing the condition was open and obvious. The plaintiff responded with an affidavit by a registered engineer. The engineer acknowledged the ramp was imprinted with a cross hatched diamond pattern to warn pedestrians but  he "found the lack of contrast between the surface of the parking level and the the curb ramp disguised the abrupt change in vertical elevation between the parking level and those surfaces. . ." He concluded that the defendant's failure to mark the curb with contrast paint was the proximate cause of plaintiff's accident.

The trial court found that the raised concrete was an open and obvious condition and granted the defendant's motion. The Appeals Court said that normally where there is no disputed about the physical nature of the condition, the question of open and obvious is a legal one for the court. However, where there is a dispute about the condition's physical nature, such as visibility, the question is factual. The Court pointed to plaintiff's testimony that the lighting conditions around the curb was "dark."  As such the Appellate Court disagreed with the trial court and the ruling was reversed.

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