Under what circumstances and to whom can a landowner, occupant or possessor of land be liable? Or should there be any liability at all? If there are open and obvious hazards, what factors do courts consider to establish liability? These are some of the issues and questions that will be discussed in this article.
I. NEGLIGENCE AND DUTY OF CARE
Before a plaintiff-entrant can establish a case for liability against a defendant-landowner under Illinois law, there must be an allegation of negligence. In order to demonstrate negligence, the plaintiff-entrant must allege sufficient facts to establish the existence of a duty owed by the defendant-landowner to the plaintiff-entrant, the breach of such duty, and an injury resulting from that breach.1
A. The Parties’ Relationship
In determining whether a duty is owed, the court will examine the parties’ relationship. The type of plaintiff-entrant on the defendant-landowner’s property will impact the decision as to whether or not a duty exists. Different standards apply depending upon whether an adult plaintiff-entrant is a trespasser or invitee, according to the Premises Liability Act.2 Generally, a defendant-landowner owes no duty of care to a trespassing adult except to refrain from willfully and wantonly harming him or her,3 unless the defendant-landowner’s premises constitute a "place of danger".4 With respect to invitees, on the other hand, a defendant-landowner has a general duty to those who lawfully enter upon the defendant-landowner’s land to exercise reasonable care for their safety.5
In cases involving personal injury to children, the distinction between invitee and trespasser is no longer relevant. Illinois courts have held that the measure of liability for those who own, control and/or maintain premises, whether or not children are involved, is based upon ordinary standards of negligence, i.e., the reasonable foreseeability of harm6 and the condition of the property.7
In cases involving firefighters, there is a noteworthy exception to liability, as highlighted in the case of Smithers v. Center Point Properties Corp.8 In this case, the Illinois appellate court was presented with the issue of whether public policy requires defendant-landowners to maintain their premises in a reasonably safe condition for their invitees despite the "fireman’s rule". The fireman’s rule limits recovery to those instances in which the defendant-landowner breached his duty of care by failing to keep the premises safe so as to prevent injury to firefighters, in those situations where the causes are independent of the emergency that brought the firefighter to the premises or the danger is readily apparent if it is not independent of the emergency.9 The Smithers court held that there must be an appropriate balance between defendant-landowners’ duties to maintain their premises in a reasonably safe condition and a firefighter’s assumption of risks inherent in his or her responsibilities as a firefighter.10
With respect to the issue of the relationship that exists between the parties, the case of Bartelli v. O’Brien11 is noteworthy. In Bartelli, an adjacent landowner alleged that his neighbor (a hotel owner) negligently failed to prevent a fire at the hotel from spreading onto the adjacent landowner’s property. Neither party was an "entrant";12 however, the Illinois appellate court held that the occurrence of a fire at the landowner’s hotel and its spreading to nearby buildings was foreseeable, and that the landowner had a common law duty to use reasonable means to prevent the spread of fire to adjacent structures.13
The case of Winfrey v. Chicago Park Dist.14 also is instructive. In this case a governmental entity was the defendant. Based on the Tort Immunity Act, the Illinois appellate court cited the Tort Immunity Act,15 which provides that a local public entity is not liable for injuries if liability is asserted based on the "existence of a condition of any public property intended or permitted to be used for recreational purposes unless such local public entity is guilty of willful and wanton conduct proximately causing such injury."16 In addition, the court stated that willful and wanton conduct requires a "course of action", indicating more than mere inaction.17
B. Condition of Property
Another factor that Illinois courts examine in determining whether a defendant-landowner owes a duty to an plaintiff-entrant is the condition of the property. In this connection, the courts often will ask the following questions: Is the property maintained properly and not "a place of danger?" Was the substance that caused the injury placed on the property by the defendant-landowner? Is the condition an "open and obvious hazard" of which the plaintiff-entrant should have been aware on his or her own recognizance?
1. Place of Danger. In Rhodes v. Illinois Central Gulf R.R.,18 the Illinois Supreme Court had occasion to establish an exception to the rule that a defendant-landowner owes no duty of care to a trespassing adult except to refrain from willfully and wantonly harming him. The plaintiff-entrant attempted to invoke the "place of danger" exception. This exception imposes liability upon a defendant-landowner when the premises, by reason of a condition or activity thereon, present the risk of harm to anyone who is present.19 In such a circumstance, according to the court, a defendant-landowner has a duty to use ordinary care to avoid injury to a trespasser who has been discovered in a "place of danger" on the defendant-landowner’s premises.20 The court noted that this case did not involve a situation where a person who comes onto the property is injured by his or her own means without regard to the condition of the property.21
2. Dangerous conditions where children habitually frequent the premises. There is a line of Illinois cases involving dangerous conditions (e.g., fire, water or height) where children are involved. In these instances, the courts have generally held that a defendant-landowner, occupant or person in possession and control of the premises has a duty to exercise due care to remedy a dangerous condition on the premises or to otherwise protect children from injury resulting from the condition where (1) the owner or occupant of the land knew or should have known that children habitually frequent the premises; (2) a defective structure or dangerous condition was present on the premises; (3) the defective structure or dangerous condition was likely to injure children because of a child’s immaturity in appreciating the risk involved; and (4) the expense and inconvenience of remedying the dangerous condition is slight compared to the risk to children.22 In Corcoran v. Village of Libertyville,23 the Illinois Supreme Court stated that "[a]bsent ownership possession or control, no duty arises and liability cannot attach."24 In another noteworthy decision, the Illinois appellate court recently held that a duty to exercise reasonable care to children requires that the defendant-landowner be a party who owns, occupies or controls the land upon which the dangerous condition exists.25
3. Substance placed on premises by landowner. A review of Illinois cases shows that courts use a different analysis where an open and obvious hazard exists by virtue of a substance placed on the premises by the defendant-landowner. In this instance, liability is imposed on the defendant-landowner if the plaintiff-entrant can show the substance was placed on the premises through the defendant-landowner’s negligence,26 and the court will allow the jury to consider the issue of the plaintiff-entrant’s negligence without requiring proof of the defendant-landowner’s actual or con-structive notice.27
4. Natural accumulation rule. An exception to liability based on the condition of the property is provided under the "natural accumulation" rule, as illustrated in Kellerman v. Car City Chevrolet-Nissan, Inc.28 In this case, the plaintiff-entrant slipped and fell on natural accumulations of snow and ice while looking at cars for sale in a car lot. The appellate court ruled that the defendant-landowner was not liable because, under the natural accumulation rule, a defendant-landowner does not have a duty to a business invitee to remove natural accumulations of snow and ice.29 On the other hand, the court noted, if the snow and ice were produced or accumulated by artificial causes or produced or accumulated in an unnatural way because of the defendant-landowner’s own use of the area concerned, then the defendant-landowner would be liable under Illinois law.30
5. Open and obvious hazard. Generally, where there are hazardous conditions of which the plaintiff-entrant was aware and which were open and obvious to the plaintiff-entrant, there is no duty of care. However, Illinois courts have not provided a complete defense for the defendant-landowner in such instances.31 The following section of this paper will examine this issue in more detail.
II. FACTORS DETERMINING LIABILITY OF LANDOWNER
The following discussion examines the factors that Illinois courts have considered when the plaintiff-entrant was lawfully on the premises and the fact pattern indicated that an open and obvious hazard or substance, or a dangerous condition, was created by or placed on the land by the defendant-landowner.
As noted earlier, Illinois courts will first determine whether or not a duty exists. This is a question of law,32 and involves an examination of the parties’ relationship and whether the law imposes an obligation upon the defendant-landowner to act reasonably for the plaintiff-entrant’s protection based on that relationship.33 Accordingly, the courts examine the underlying facts of each case and determine defendant-landowner liability based on the presence or absence of certain factors.34 These factors are (1) the reasonable foreseeability of injury; (2) the reasonable likelihood of injury; (3) the magnitude of the burden that guarding against injury places on the defendant-landowner; and (4) the consequences of placing that burden on the defendant-landowner.35
With respect to determining foreseeability, the courts refer to the restatement (second) of torts § 343 (1965) ("Restatement"). The defendant-landowner is subject to liability under this section of the Restatement if the defendant-landowner knows of, or by the exercise of reasonable care could discover, the condition and should realize that it involves an unreasonable risk of harm to the plaintiff-entrant and expect that the plaintiff-entrant will not discover or realize the danger (or will fail to protect himself or herself against it), and the defendant-landowner fails to exercise reasonable care to protect the plaintiff-entrant against the danger (unless one or more of the following exceptions applies).36
If the court determines that the harm was reasonably foreseeable from the defendant-landowners’ perspective, the courts then examine whether the remaining elements of the Illinois’ duty test have been satisfied.37 The likelihood of the injury is often not weighed heavily in finding a duty where there are open and obvious hazards since the plaintiff-entrant should have been aware of the dangers and acted accordingly.38 The courts then examine based on the underlying facts of each case whether the burden of guarding against injury and the consequences of placing that burden on the defendant-landowner were slight or of such a magnitude as to be unreasonable. 39
The leading case in this area is Ward v. K Mart Corp.40 In this case the court referred to § 343 of the Restatement and adopted an exception to the general rule of no liability to defendant-landowner’s where there are open and obvious hazards or conditions.41 This exception generally provides that a defendant-landowner is not liable to an plaintiff-entrant for open and obvious hazards unless the defendant-landowner should anticipate the harm despite such knowledge or obviousness.42 Whether the harm should be anticipated or is reasonably foreseeable depends upon two considerations: (1) whether the defendant-landowner has reason to expect that the plaintiff-entrant’s attention may be distracted so as to either not discover what is obvious or else to forget about the hazard and fail to protect him or herself against it; or (2) the defendant-landowner has reason to expect the plaintiff-entrant will proceed to encounter the known or obvious danger because to a reasonable person in his or her position the advantages of doing so outweigh the apparent risk.43 The first consideration is referred to as the "distraction" exception; the second consideration is referred to as the "deliberate encounter" exception.
A. Distraction exception.
The most frequently cited case in this area is Ward v. K Mart Corp., supra. Cases where this exception is invoked generally involve situations in which the plaintiff-entrant is distracted from the "open and obvious hazard" because conditions required that his or her attention be focused elsewhere.44 The courts take into account the social utility that the defendant-landowner may be providing to the public when determining whether a duty exists and whether this exception applies.45 In a recent Illinois appellate court decision, True v. Greenwood Manor West, Inc.,46 the court did not determine that a duty of care existed since it held that the defendant-landowner could not have reasonably foreseen that the plaintiff-entrant would be distracted and therefore distinguished this case from normal "distraction" exception cases. In this case, the plaintiff-entrant was visiting her sister in a nursing home, and when she was leaving the room she tripped over a fan that had been placed on the floor near her sister’s bed. The plaintiff-entrant slid across the floor and hit her head on the door, sustaining injuries. The appellate court, citing § 343A of the Restatement, found that the defendant-landowner, a nursing home. was not liable for the plaintiff-entrant’s injuries because the plaintiff-entrant simply failed to look down as she turned to leave the room, and missed the open and obvious hazard of the fan. The court noted that the plaintiff-entrant initially had seen the plainly visible fan and walked past it without any problems and that the defendant-landowner could not have reasonably foreseen that the plaintiff-entrant would be distracted. The court further noted that the plaintiff-entrant’s injuries were slight, and that it would be burdensome and impractical to require that the defendant-landowner’s staff remove the fan each time a resident left the room or the fan was not needed.
B. Deliberate encounter exception.
There also are several Illinois cases dealing with this exception.47 These cases generally involve situations where the court must determine whether the defendant-landowner should have reasonably foreseen the consequences, based on whether or not the plaintiff-entrant would nevertheless proceed to encounter the known hazard because the advantages of such an encounter would outweigh the inherent risks. In LaFever v. Kemlite Co., 48 the plaintiff-entrant was employed as a driver for a disposal company and was hired by the defendant-landowner’s company to haul away "edge trim" (a slippery waste product of the defendant-landowner’s manufacturing process), which was left by the defendant-landowner’s employees around containers that were to be picked up by the plaintiff-entrant and on which the plaintiff-entrant slipped despite repeated requests by the plaintiff-entrant and its employer to the defendant-landowner to pick up the edge trim.49 The Illinois Supreme Court noted that the reasonableness of the plaintiff-entrant’s actions was not a determinative factor in deciding whether the defendant-landowner was liable, and ruled that the defendant-landowner could reasonably foresee an economic compulsion imposed on the plaintiff-entrant to perform the work he was hired to do. The court distinguished the case of Burse v. CR Industries, Inc.,50 which held that the deliberate encounter exception is not applicable when there is no defect or dangerous condition in the premises but rather in the tasks performed by the plaintiff-entrant (the dock was not high enough for the plaintiff-entrant to tarp the top of his truck) and the defendant-landowner did not have control over the plaintiff-entrant’s work and contracted out the responsibility for the specific task of the plaintiff-entrant.51
Under relevant Illinois case and statutory law, as discussed above, the court will first determine whether a defendant-landowner owes a duty of care. The courts will determine whether the parties’ relationship is such that the law imposes an obligation on the defendant-landowner to act reasonably for the benefit of the plaintiff-entrant. If the court determines that a duty of care was owed, the court will then examine whether there was a breach of this duty and whether the alleged injury resulted from that breach. The condition of the property or whether the defendant-landowner may have contributed to or caused a dangerous or hazardous condition to exist is also relevant and significant in the courts’ analysis. In cases where there is an obvious and open hazard, generally a defendant-landowner is not liable to a plaintiff-entrant unless the defendant-landowner should have reasonably foreseen (as determined from the perspective of the defendant-landowner) or anticipated the harm despite the knowledge of the plaintiff-entrant or the obviousness of the condition. n
1 See, e.g., Ward v. K Mart Corp., 136 Ill. 2d 132, 140-42 (1990).
2 740 ILCS 130/3 (West 1992).
3 See, e.g., Mt. Zion State Bank & Trust v. Consolidated Communications Inc., 169 Ill. 2d 110, 116 (1995); Kahn v. Burton Co., 5 Ill. 2d 614, 625 (1955); 740 ILCS 130/3 (West 1992).
4 See infra notes 17-20 and accompanying text.
5 See, e.g. Richardson v. Vaughn, 251 Ill. App. 3d 403, 407 (1993).
6 See, e.g. Kahn v. Burton, 5 Ill. 2d at 625.
7 See infra notes 22-24 and accompanying text
8 2000 Ill. App. LEXIS 1000 (1ST Dist. Ill. Dec. 28, 2000).
9 See id. at *11. See also Hedberg v. Mendino, supra note 5, 218 Ill. App. 3d at 1091 (ruling that valid cause of action existed where complaint alleged that police officer was injured by cause independent of emergency he was investigating); Court v. Grzelinski, 72 Ill. 2d 141, 148 (1978).
10 See id. at *25.
11 307 Ill. App. 3d 655 (1999).
12 This case did not involve entry by a plaintiff-entrant onto a defendant-landowner’s land. Instead, this case involved adjacent landowners.
13 Id. at 661-62.
14 274 Ill. App. 3d 939 (1995).
15 745 ILCS 10/1-101 et seq. (West 1993).
16 Id. at 10/3-106.
17 Winfrey v. Chicago Park Dist., supra note 13, 274 Ill. App. 3d at 945 (citing Benhart v. Rockford Park Dist., 218 Ill. App. 3d 554, 578 (1991), for "a statutory definition of willful and wanton").
18 172 Ill. 2d 213 (1996).
19 See id. at 229-30.
20 See id.
21 See id. at 231.
22 See Mt. Zion Bank & Trust Co. v. Consolidated. Communications, Inc., supra note 3, 169 Ill. 2d at 118; Corcoran v. Village of Libertyville, 73 Ill.2d 316, 326 (1978); Kahn v. Burton Co., supra note 3, 5 Ill. 2d at 625.
23 Supra note 21, 73 Ill. 2d at 326.
25 See Calhoun v. The Belt Ry. Co. of Chicago, 314 Ill. App. 3d 513, 519 (2000).
26 Wind v. Hy-Vee Food Stores, Inc., 272 Ill. App. 3d 149, 155 (1995) (citing Donoho v. O’Connell’s Inc., 13 Ill. 2d 113, 118 (1958)).
28 306 Ill. App. 3d 285 (1999).
29 Id. at 288 (citing Watson v. J.C. Penney Co. Inc., 237 Ill. App. 3d 976, 978 (1992)).
30 See McCann v. Bethesda Hosp., 80 Ill. App. 3d 544, 548 (1979).
31 See LaFever v. Kemlite Co., 185 Ill. 2d 380, 390 (1998); Ward v. Kmart Corp., supra note 1, 136 Ill. 2d at 145.
32 See id. at 388-89; Ward v. Kmart Corp., supra note 1, 136 Ill. 2d at 140-41.
33 See id.
34 See King v. NLSB, 313 Ill. App. 3d 963, 967 (2000).
35 See Ward v. Kmart Corp., supra note 1, 136 Ill. 2d at 140-41.
36 See restatement (second) of torts § 343 cmt. f (1965) [hereinafter restatement].
37 See LaFever v. Kemlite, supra note 30, 185 Ill. 2d at 397.
39 Id. at 398.
40 Supra note 1, 136 Ill. 2d at 145.
42 restatement § 343A(1).
43 See Ward v. Kmart Corp., supra note 1, 136 Ill. 2d at 140-41.
44 See id. at 153-54.
45 See, e.g., Menough v. Woodfield Gardens, 296 Ill. App. 3d 244 (1998). In this case an entrant was injured playing basketball on a court consisting of a single pole anchored inside a concrete-filled tire. The entrant made a "lay-up shot" at the net and as he came down his foot landed on the tire, breaking his ankle. The court held that it was reasonably foreseeable that the entrant would have been distracted, thereby failing to see the tire. The court also ruled that the burden upon the landowner to protect against the danger would have been slight (the landowner could have removed the tire and cemented the pole directly into the ground) but did not examine other factors such as the reasonable likelihood of injury or the consequences of placing that burden on the landowner. The court remanded the case to the trial court for a jury determination of whether the landowner breached its duty and whether the entrant was comparatively negligent.
46 316 Ill. App. 3d 676 (2000).
47 See, e.g., Bucheleres v. The Chicago Park Dist., 171 Ill. 2d 435, 455-59 (1996) (Justice Harrison dissenting) (holding that park district was not liable as landowner to entrants diving off seawalls where there were signs warning against diving, and that landowner did not have duty to hire lifeguards to guard all walls or keep the area cordoned off). Ward v. Kmart Corp., supra note 1, is often cited as authority for the factors that courts will consider when an open and obvious hazard is alleged to exist.
48 Supra note 30, 185 Ill. 2d at 390.
49 See Id. at 384-386.
50 288 Ill. App. 3d 48 (1997).
51 Id. at 55.
Cynthia Bronson is Assistant General Counsel at Metropolitan Life Insurance Company. She has been practicing law for 18 years and concentrates in the area of commercial real estate. Ms. Bronson received her B.S. degree from Purdue University in 1979 and her J.D. degree from the University of Iowa in 1982.
Lynda Keever is a solo practitioner working in Naperville and Elmhurst, Illinois. She concentrates in the areas of residential real estate and estate planning/probate. Ms. Keever received her B.A. from Milliken University in 1977 and her J.D. from Chicago-Kent College of Law in 1999.