Appellate Court Elaborates on the Open & Obvious and Deliberate Encounter Doctrines for Premises Liability Cases

This is a post from my blog Illinois Personal Injury Trial Book that discusses a case involving a trip and fall on a city cross-walk and illustrates many of the challenges confronted by a plaintiff when filing suit for injuries relating to a trip and fall from a deviation in pavement, particularly against a municipality.

Ballog v. City of Chicago, 1-12-2429 (Garcia)

Facts:  Plaintiff fell and fractured her ankle when she tripped on a defect in the crosswalk.  Prior to the occurrence, the City of Chicago had undergone improvements of the sidewalks and curbs in the area of the incident.  At the crosswalk where plaintiff fell, there were cut-outs at the curb where the asphalt dropped approximately 2 inches and was unfilled at the time of the occurrence.  The condition was the same on both sides of the street that Plaintiff was crossing, so that the evidence revealed that plaintiff was able to safely negotiate a similar defect as she left the curb for the crosswalk, but when she arrived to other side of the street she did not notice the cut-out and fell.  The defendant moved for summary judgment on the basis that the defect was open and obvious and the trial court agreed and granted summary judgment in favor of the City.  The Plaintiff appealed arguing that (1) the issue of whether the defect was open and obvious is a question of fact and (2) that the deliberate encounter exception applied.

Holding:  The condition in the crosswalk was an open and obvious danger such that the defendant owed no duty to plaintiff, and the deliberate encounter exception was inapplicable to the facts.

Filed in Trial Book Under:  Premises Liability; Open & Obvious; Deliberate Encounter; Sidewalks

Commentary:  The fact that the crosswalk had an identical cut-out that plaintiff successfully negotiated was determinative to the outcome here.  The opinion specifically states that “had the plaintiff exercised ordinary care for her own safety, as she did in traversing the very same gap in the street surface as she began to cross, she would have been able to  safely traverse the gap on the opposite side of the crosswalk.  The existence of the gap on both corners forecloses any suggestion that the gap was unreasonably dangerous to demand additional precautions by the City.”  Moreover, the plaintiff’s attempt to use the deliberate encounter exception was quickly dismissed by the appellate court.  The plaintiff seemed to testify that she was unaware of the defect that caused her to fall, whereas the rationale for the deliberate encounter exception is typically that the plaintiff knew of the defect but for some reason was required to deliberately encounter it anyway.  In this case, the court determined that the encounter was not deliberate and therefore not applicable to the case.  It seems to flow logically that in order for a plaintiff to deliberately encounter a danger, they must know that the danger is present.  That wasn’t the case here, so the exception was not available.