by John E. Motylinski (Fall 2016)
Following a recent Illinois appellate court decision, Illinois municipalities and property owners now have a stronger defense in defeating negligence claims, especially those arising from outdoor trip and fall accidents. In Negron v. City of Chicago, 2016 IL App (1st) 143432, the court held that the City of Chicago’s open and obvious defense prevailed over plaintiff’s claim for negligence because the plaintiff could not show the City would have reasonably foreseen she would have been distracted by a crowd and then injured. In so ruling, the court has confirmed a new judicial trend of expanding the “open and obvious” defense in favor of municipalities and property owners.
The “open and obvious” defense provides that landowners do not have a duty to warn of open and obvious dangers. For example, a landowner would not liable in negligence if an undistracted pedestrian stepped into a pothole in a parking lot under this defense. (See Rexroad v. Springfield, 206 Ill.2d 33 (2003)) However, there is an exception to the open and obvious defense: when the landowner would reasonably foresee that a person would become distracted, and thereby be unable to discover the obvious danger, the landowner open and obvious defense does not apply and the landowner will be liable.
In an important decision two years ago, the Illinois Supreme Court held that the distraction exception was only available where the distraction was “reasonably foreseeable by the defendant” in Bruns v. City of Centralia, 2014 IL 116998. The clear motive underlying our Supreme Court’s decision was that municipalities should not have to be saddled with the “unjustified” burden of maintaining each and every inch of property within their corporate limits.
The Bruns case was a clear departure from Illinois precedent, which only required that the plaintiff had been actually distracted. This former precedent allowed plaintiffs to maintain negligence lawsuits even where the plaintiff had caused the distraction by his or her own hand, which resulted in more lawsuits against property owners and municipalities.
In May of 2016, the Illinois Appellate Court picked up where Bruns left off in deciding the Negron case, which further narrowed the distraction exception in favor of the City of Chicago. In Negron, Melanie Negron (the plaintiff) was walking home on the sidewalk when she encountered a crowd of people. The crowd was loudly celebrating the release of a Puerto Rican political prisoner. To avoid the crowd, Negron moved to the other side of the street. Just as she arrived to the other sidewalk, Negron heard someone behind her screaming obscenities and shouting “everybody hit the floor.” This startled Negron, who looked over she shoulder while continuing to walk forward. After a few steps, Negron tripped over a two-inch deviation in the sidewalk and was injured.
Following her trip and fall injury, Negron sued the City of Chicago in negligence. The City, unsurprisingly, asserted the open and obvious defense and claimed that the City had no duty to make Negron safe of the open and obvious two-inch deviation. Although the City acknowledged that Negron was genuinely distracted, it argued further that the distraction exception could not apply because it could not have reasonably foreseen that Negron would have been injured in such a way. The trial court agreed with the City and granted summary judgment in its favor.
Negron then appealed to the Illinois Appellate Court. As in Bruns, the appellate court began by acknowledging that municipalities should not be saddled “with the impossible burden of rendering their land injury-proof.” As such, the court noted, the distraction exception is only applicable where “there are special circumstances of which a reasonable landowner would be aware that would cause people to be distracted at the site of the plaintiff’s accident.” For instance, a landowner may be liable if it was in the business of selling bulky merchandise, as the landowner could have reasonably foreseen that an exiting customer might carry the big items in front of their faces and be unable to see an otherwise open and obvious danger, such as a crack in the sidewalk.
Despite Negron’s arguments to the contrary, the appellate court found that there were no such “special circumstances” present to defeat the City’s open and obvious defense. Negron’s first assertion was that her injury was foreseeable because the City acknowledged accidents could happen because of such deviations and commonly fixed them. The court disagreed and drew a distinction between what might conceivably occur versus what is foreseeable as a matter of law. Thus, in the eyes of the court, the City did not admit that these injuries were foreseeable; rather, they were only possible. Next, Negron asserted that the City should have known that someone in the boisterous crowd would have done something to distract a pedestrian. The court rejected this argument, pointing out that Negron had actually been injured by an individual yelling obscenities – not by the crowd – which was entirely unpredictable. Thus, because there were no special circumstances at play, the City could not have reasonably foreseen Negron would have become distracted and injured in such away.
The Negron decision confirms a trend among Illinois courts to resist limiting the open and obvious doctrine via the distraction exception, especially as it applies to municipalities. Indeed, following Negron and Bruns, Illinois courts now require that, to invoke the distraction exception, plaintiffs must prove that the defendant landowner should have foreseen the distracting event – a decidedly heavy burden. Accordingly, Negron will prove useful to municipalities and property owners in reducing liability moving forward.