The passage of the Illinois Civil Justice Reform Act, (Tort Reform) created dramatic changes in both the substance and procedure of Illinois tort law.
The purpose of this article is to explore the changes made to the law of premises liability, the effects of which are only now becoming apparent.
It is possible that, of all the changes made, the amendments to the Illinois Premises Liability Act, 74 ILCS 130/1 et. seq. may be among the most radical in this legislation.
The scope of this article deals mostly with persons lawfully upon the premises in question since space does not permit an exhaustive discussion of trespassers and how the new statute may change their treatment.
The term "owner" is used in the sense of that person have the duties imposed by law for the condition of the premises or the operations conducted there and necessarily includes anyone in possession of the premises.
The amendment discussed applies to all actions accruing on and after March 9, 1995.
In order to understand the harsh, dramatic affect of the current law it is important to have an understanding of the state of premises liability law prior to tort reform.
Before the enactment of the original Premises Liability Act ("The Act"), 740 ILCS 1/1 et. seq. (1984), the law governing the duties owed to individuals who come upon the land of another was well settled and stable.
As to invitees, the landowner had the duty to exercise ordinary care to maintain the premises in a reasonably safe condition in a manner consistent with the purpose of the invitation extended. Geraghty v. Burr Oak Lanes, Inc., 5 Ill. 2d. 153, 125 N.E. 2d 47 (1955).
The Illinois position on premises liability for invitees reflected the universal common law of our sister common law states and was traceable to the English decision of Indermaur v. Dames, L.R. 1 C.P. 274, 35 L.J.C.P. 184 (1866). (See Prosser, Torts, 3rd Ed., 1964, Sec 61, p. 394.)
The duty was not passive, but active, and the owner was under the affirmative duty to conduct an inspection of his premises to discover defects which could pose an unreasonable risk of harm to invitees.
Although the owner generally owed no duty to warn or protect the invitee from dangers that were known and appreciated, the invitee was under no duty to inspect the premises and could rely on the owner to fulfill the duty to make the premises reasonably safe. Blue v. St. Clair County Club, 7 Ill. 2d. 359, 131 N.E. 2d. 31 (1955).
In reviewing the state of Illinois law the court in Gnaust v. Illinois Power, 62 Ill. 2d. 456, 343 N.E. 2d. 465 (1976) concluded that the Restatement (Second) Torts, Section 343, correctly stated the settled law regarding the liability of possessors of land to invitees.
Restatement (Second) Torts, Section 343 provides as follows:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.
The Illinois Pattern Jury Instruction stated the duty simply and directly: "It was the duty of the defendant as an owner of the property in question to exercise ordinary care to see that the property was reasonably safe for the use of invitees." IPI (Civil) 3d. 120.02.02.
Although the Supreme Court first expressly recognized that there was a duty for known and appreciated dangers in Ward v. K Mart Corp., 136 Ill. 2d. 132, 554 N.E. 2d. 223, 143 Ill.Dec. 288 (1990), Illinois courts had long followed the rule set out in Restatement (Second) Torts Section 343A which provides: (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (E.g.: Am. Express Co. v. Risley, 179 Ill. 295, 53 N.E. 558 (1899), Sterba v. First Fed. Sav. & Loan Ass’n., 77 Ill.App.2d 380, 222 N.E.2d 547 (1966); Trojan v. City of Blue Island, 10 Ill.App.2d 47, 134 N.E.2d 29 (1956); Ruby v. Wayman, 99 Ill.App.2d 146, 240 N.E.2d 699, 8 Ill.Dec. 208 (1968); Armagast v. The Medici Gallery and Coffee House, Inc., 47 Ill.App.3d 892, 365 N.E.2d 446, 8 Ill.Dec. 208 (1977); Shaffer, v. Mays, 140 Ill.App.3d 779, 489 N.E.2d 35, 95 Ill.Dec. 83 (1986).
The questions of the duty owed by the owner to the invitee was separate and distinct from the duty of the injured party to be free of comparative negligence.
Under long established tort principles the defendant could not argue that it had no duty because the plaintiff was comparatively negligent. The analysis was first whether the defendant owed the plaintiff a duty that was breached, and if so, was there comparative negligence on the part of the plaintiff. Dunn v. Baltimore & Ohio R.R. Co., 127 Ill.2d 350, 537 N.E.2d 738, 130 Ill.Dec. 409 (1989).
The New Premises Liability Act
Effective March 9, 1995, the Premises Liability Act was amended to provide as follows:
§ 2. 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.
The duty of reasonable care under the circumstances which an owner or occupier of land owes to such entrants does not include any of the following: a duty to warn of or otherwise take reasonable steps to protect such entrants from conditions on the premises that are known to the entrant, are open and obvious, or can reasonably be expected to be discovered by the entrant; a duty to warn of latent defects or dangers or defects or dangers unknown to the owner or occupier of the premises; a duty to warn such entrants of any dangers resulting from misuse by the entrants of the premises or anything affixed to or located on the premises; or a duty to protect such entrants from their own misuse of the premises or anything affixed to or located on the premises.
To date, there is only one case that has applied the new statute, Peterson v. Aldi, Inc., 1997 WL 244447, 223 Ill.Dec. 518 (2nd District, 1997). In Peterson the plaintiff had been shopping at an Aldi grocery store and while in the produce section had come upon a display of grapefruit. The display was created by placing a round bin of grapefruit on a square pallet which left the square edges of the pallet protruding into the aisle. While circling the bin to select her grapefruit the plaintiff tripped over a protruding corner of the pallet, fell and sustained serious injuries. On deposition the plaintiff admitted that the protruding corner was not hidden and could have been observed if she had looked at her feet as she circled the bin.
Applying the new Premises Liability Act, Judge Duncan granted the defendant’s motion for summary judgement holding that by the express terms of the act the defendant had no duty to protect or warn the plaintiff of a risk that was observable by the plaintiff.
In affirming the trial court in a 2-1 decision (Justice Rathje dissenting) the Appellate Court held that the amendments to the Premises Liability Act were plain and unambiguous and had to applied literally - there is no duty for a condition that the plaintiff could have observed and avoided if he or she had looked in the first instance. The Appellate Court refused to hold that the amended Premises Liability Act overruled Ward v. K Mart Corp., supra. and its adoption of the exception stated in Restatement (Second) Torts Section 343A, since the record contained no claim that the plaintiff was distracted and failed to observe the corner of the skid for this reason.
This case, however, is contrary to prior Illinois precedent on obstructed aisles in stores and can only be explained if Ward is no longer good law. (In his dissent, Justice Rathje pointed out the common sense proposition that shoppers are looking at the displayed goods, not their feet as they walk through stores.)
The legislature certainly can change common law duty by statute. (e.g. Advincula v. United Blood Services, 176 Ill.2d 1, 678 N.E.2d 1009, 223 Ill.Dec 1 (1996); Glass v. Ingalls Memorial Hospital, 32 Ill.App.3d 237, 336 N.E.2d 495 (1975).
What remains to be seen is the extent of the change the amended Premises Liability Act will bring to claims against property owners in Illinois.
As the Appellate Court noted in Peterson, the duty of the Court is to give effect to the plain meaning of the statute and, where the statute is unambiguous, to give effect to the statute as written. A Court cannot read into it exceptions, limitations, or conditions that the legislature did not express.
The Act does not appear to be ambiguous and if literally applied redefines the duty of ordinary care radically for property owners. Not only does the Act overrule Ward, but also all of the prior cases that required an owner to inspect the premises to discover latent defects so that the owner could make the premises safe for use by invitees.
Paradoxically, the Act appears to put the duty of inspection on the injured party, requiring that he or she uncover dangers that could be "reasonably" discovered.
By contrast the owner has no duty to do anything by way of inspection and can assert as a complete defense that he had no actual knowledge of any dangerous condition on the property.
If the defect was latent then there is no liability whether the owner knew of it or not.
If the defect was not latent, then the plaintiff should have reasonably discovered it themselves and the owner was under no duty to repair it or warn the plaintiff of its existence since it was "open and obvious".
The new Act also overrules the concept of the duty of an owner being independent of the conduct of the invitee.
Under the express terms of the statute there is no duty to warn or protect against dangers that result from the "misuse" of the premises.
The only way to interpret this is to conclude that the prior independent duty analysis of Dunn v. Baltimore & Ohio R.R. Co., supra, is overruled as well.
Under the new Act the only analysis is whether the plaintiff was negligent; if so, there can be no duty owed by the owner. In so doing the Act reinstitutes the doctrine of contributory negligence as a complete bar to the plaintiff’s claim.
Gnaust v. Illinois Power, supra., is also overruled and its holding that Restatement (Second) Torts, Section 343 is the law of Illinois for premises liability is only a historical curiosity.
After the amendment to the Premises Liability Act what duties does a landowner have to a person lawfully on the premises?
Under the new Act the owner probably owes no duty at all for the condition of the premises since the danger is either latent or obvious.
As to activities conducted on the premises, the only duty is not to actively injure the person by an activity that the person was unaware of, i.e. a stockboy dropping a box on a passing customer.
Traditional scenarios creating liability for owners are simply written out of Illinois law: falls into excavations, stairs breaking on rotten porches, foreign substances on floors, unnatural accumulations of ice and snow, falls down unlit stairwells, etcetera.
The abandonment of more that one hundred of years of precedent in the spasm of tort reform is still not generally appreciated by either the bench or bar.
The Post-Tort Reform I.P.I. jury instructions prepared by the Illinois Supreme Court Committee on Jury Instructions in Civil Cases appear to be ignorant of the Act and state that the duty of owners is ordinary care (TR-II). The jury is told on the combined issues and burden of proof instruction that the plaintiff has the burden of proving the enumerated points of Restatement (Second) Torts, Section 343 (TR-XIII) although the Restatement is clearly no longer the law.
Did the legislature go farther in "reforming" the law of premises liability than it intended?
Did the legislature really intend to use the well understood legal term "reasonable care" in providing for the duty of owners to lawful entrants and then enact exceptions that totally abrogate that duty?
Until the courts answer these questions, one can only guess.
Carl F. Schroeder is a Sole Practitioner in Wheaton. His practice is concentrated in Plaintiff’s Civil Litigation. He received his Undergraduate Degree in 1970 from Valparaiso University and his Law Degree in 1973 from Loyola University.