Expanding Landowners’ Exposure to Liability for ‘Open and Obvious’ Hazards in Illinois through Tort Reform

In Illinois, the law has long recognized limitations in premise liability claims that fall under what has come to be known as the ‘open and obvious doctrine.’ The basic idea behind this doctrine is that landowners should not be required to foresee or protect against injury when the openness and obviousness of a dangerous condition is so clear that an entrant should be to prevent their own harm through the exercise of ordinary care.

Essentially the rule allows landowners to defend claims by asserting that the duty of reasonable care does not extend to open and obvious hazards. As a result, property owners have often escaped liability, while premise liability claimants have been presented with obstacles to obtaining financial compensation. A bill introduced this year, though, seeks to amend Illinois’ Premises Liability Act by altering the manners in which duty of care issues are evaluated in open and obvious hazard cases. By increasing landowners’ exposure to liability, and decreasing preclusions and limitations on recovery for victims, we find that HB 1441 provides a more equal balance between the rights of each parties.

In better understanding the impact that enacting this bill would have, it is important to note that it neither automatically holds landowner’s liable, nor automatically entitles a claimant to compensation in premises cases involving open and obvious hazards. Rather, it expands recovery outlets available to victims by reducing barriers presented by duty-related determinations when the condition that caused injury was open and obvious.

Because premises liability claims are based upon a theory of negligence, the Plaintiff must prove their case by establishing duty, breach, causation, and damages. Illinois’ Premise Liability act, as currently interpreted, allows the judge or jury to consider open and obvious conditions in determining whether a duty exists. Duty is critical, because before the other elements can be examined, it is first necessary to determine whether a duty was even owed. Stated differently, one cannot breach a duty that they do not owe, and if no breach occurred, than liability cannot be imposed.

The proposed amendment, as drafted, seeks to add the following language to the Illinois’ Premises Liability Act:

“Whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, under Section 2-1116 of the Code of Civil Procedure and shall not be considered with respect to any other issue of law or fact, including duty.” [Emphasis added]

If enacted, the amendment would alter application of the open and obvious doctrine by making it a factor that only the trier of fact may consider, and only for purposes of evaluating comparative fault. In doing so, it precludes the court from considering open and obvious hazards in determining the presence, or lack, of duty owed by landowners, despite the long standing principle that the issue of whether or not a duty exists is a matter of law to be decided by the court. At the same time, though, it also precludes the trier of fact from considering the same with regard to any issue other than assessing the level of fault attributed to each party. Consequently HB 1441 would make it more difficult for landowners to avoid liability, because the open and obvious doctrine would no longer be a complete defense.

If you or a loved one were injured while on public or private property owned by another, contact the Chicago Premises Liability Lawyers of Zneimer & Zneimer P.C. at 773-516-4100, or send us a message online, to schedule your FREE no-obligation consultation.