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The Open and Obvious Rule: Would a Reasonable Person Have Seen It?

Post Authored By: Alexandra M. Verven

On November 6, 2020, the First District Appellate Court held that a raised deviation in a sidewalk was an open and obvious condition because a reasonable person would have seen it. Foy v. The Village of La Grange, 2020 IL App (1st) 191340.

In Foy v. The Village of La Grange, the Plaintiff, Mr. Foy, sued the Village for injuries sustained from a trip and fall on what he described as a “raised deviation” between sidewalk slabs caused by tree roots underneath the sidewalk. 2020 IL App (1st) 191340 ¶ 3. In response, the Village moved for summary judgment on several bases, one of which was the open and obvious doctrine. Id. at ¶ 4, 21 (citing Bruns v. City of Centralia, 2014 IL 116998, ¶ 16 (quoting Restatement (Second) of Torts § 343A cmt. b, at 219 (1965) (obvious means that both the condition and the risk are apparent to and would be recognized by reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment)).

At his deposition, Mr. Foy testified that at the time he fell, it was light out and he had no trouble seeing where he was walking. Id. at ¶ 5. He similarly denied any obstructions preventing him from seeing the defect he complained of. Id. The key question and answer, however, on which the case ultimately was decided was:

[THE VILLAGE’S COUNSEL]: If you were looking down at that particular sidewalk defect just prior to your fall, would you have been able to see it?

[MR. FOY]: Yes.”

Id. at ¶ 6.   Consequently, the trial court granted the Village’s motion for summary judgment, in favor of the Village on its open and obvious argument. Id. at ¶ 12. The trial court reasoned that the facts, photographs of the sidewalks, and most importantly, Plaintiff’s testimony, made it clear that the condition was open and obvious, largely because Plaintiff confirmed he would have been able to see the defect had he been looking down while he was walking. Id. Plaintiff’s testimony (light out at time of fall, no obstructions) similarly ruled out the application of the two exceptions to the open and obvious rule. Id. at ¶ 13.

The First District Appellate Court affirmed this decision, finding that there was an apparent sidewalk deviation which a reasonable person could see. Id. at ¶ 22 (citing Sandoval v. City of Chicago, 357 Ill.App.3d 1029, 1029) (2005)(any reasonable person exercising ordinary care in traversing down a sidewalk with elevation changes would recognize and appreciate the risk involved)).  The court further noted that it did not matter that there was conflicting evidence in the case about the size of the sidewalk deviation (Plaintiff testified the height variance was two to three inches, while the Village’s director of public works testified it was 1.5 to 1.75 inches); the fact remained the same that there was an apparent defect. Id. Like the trial court, the Appellate Court, relied on the fact that Mr. Foy admitted that the sidewalk deviation was readily visible in ruling that the sidewalk defect was open and obvious. Id.

The Appellate Court went further to distinguish this sidewalk defect case from its prior holding in Buchaklian v. Lake County, which involved a person tripping over raised portions of a rubber floor mat. 314 Ill.App.3d 195, 202-03 (1st Dist. 2000). The Court noted that in contrast to raised portions of a rubber mat that blend in with the rest of the mat, a raised sidewalk slab causing a deviation is readily visible to a reasonably prudent pedestrian, even when not looking downward. Foy, 2020 IL App (1st) 191340¶ 24. Not to mention that sidewalk deviations are common and can be easily anticipated by the average pedestrian. Id. The Count reiterated that the open and obvious doctrine is an objective standard, and it is not based on a plaintiff’s subjective knowledge. Id. at ¶ 25.

About the Author:

Alexandra Verven

Alexandra Verven is an associate attorney with the law firm of Barker, Castro, Kuban & Steinback LLC. Alexandra has concentrated her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. Her medical malpractice defense work involves pre-litigation investigation and counseling, as well as guidance and recommendations to her clients in various risk management strategies. She also handles a wide variety of civil defense litigation where she represents not-for-profit organizations and health care facilities in cases involving premises liability and personal injury. Prior to joining Barker, Castro, Kuban & Steinback LLC, Alexandra worked as a law clerk at one of Chicago’s prevalent plaintiff litigation firms, where she gained invaluable experience she uses to defend her current clients.

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