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Tuesday, February 24, 2015

New Bill Introduced to Abolish “Open and Obvious” Absolute Defense

On February 5, 2015, House Bill 1441 was introduced in the Illinois General Assembly.  This bill would amend the Premises Liability Act, 740 ILCS 130/2, as follows: 
The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. 
The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them. 
Whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, under Section 2-116 of the Code of Civil Procedure and shall not be considered with respect to any other issue of law or fact, including duty.
Local governments often rely on the “open and obvious doctrine” as a complete defense to premises liability cases.  The doctrine is an exception to the general duty of care owed by a landowner that provides that a landowner is not liable for harm caused by a condition on the land whose danger is known or obvious. A condition is open and obvious where a reasonable person in the plaintiff’s position exercising ordinary perception, intelligence, and judgment would recognize both the condition and the risk involved.  This analysis depends on the objective knowledge of a reasonable person confronted with the same condition and not on plaintiff’s subjective knowledge.

The affirmative defense affects “duty” in two ways.  First, where a condition is deemed open and obvious, the likelihood of injury is generally considered slight because it is assumed that people encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks.  Second, injuries caused by open and obvious conditions are unlikely to be reasonably foreseeable as people will generally appreciate the risks associated with such conditions and exercise care for their own safety.

House Bill 1441, if passed, could expose landowners to liability even in cases where the danger was open and obvious (e.g., swimming pools, large pot holes, unmarked steps).  It will no longer be a complete defense, but will only be considered for purposes of determining if the plaintiff is also at fault, and if so, to what extent.

As an example, if a person is injured by falling into a three-foot wide pothole, under the proposed changes to the Premises Liability Act, the “open and obvious” defense could only be applied to the issue of comparative fault.  So, if the plaintiff is found to be 20% at fault and the landowner 80% at fault, she may still recover 80% of her damages.  Contrast that to the current law where the landowner could use the “open and obvious” as an absolute defense to liability. 

Post Authored by Liz Barton, Ancel Glink


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