Deibert v. Bauer Bros. Const. Co., Inc.

566 N.E.2d 239, 141 Ill. 2d 430, 152 Ill. Dec. 552, 1990 Ill. LEXIS 161
CourtIllinois Supreme Court
DecidedDecember 20, 1990
Docket69400
StatusPublished
Cited by206 cases

This text of 566 N.E.2d 239 (Deibert v. Bauer Bros. Const. Co., Inc.) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deibert v. Bauer Bros. Const. Co., Inc., 566 N.E.2d 239, 141 Ill. 2d 430, 152 Ill. Dec. 552, 1990 Ill. LEXIS 161 (Ill. 1990).

Opinion

JUSTICE CALVO

delivered the opinion of the court:

Plaintiff, Clarence Deibert, brought a negligence suit in the circuit court of St. Clair County against defendant, Bauer Brothers Construction Company, Inc. A jury found in favor of plaintiff and assessed damages at $462,000. The jury also found plaintiff 40% responsible for his injuries, thereby reducing his award to $277,200. The appellate court affirmed the judgment. (188 Ill. App. 3d 108.) We granted defendant’s petition for leave to appeal (107 Ill. 2d R. 315). The Illinois Trial Lawyers Association (ITLA) filed an amicus curiae brief in support of plaintiff.

Plaintiff worked for Fritz Electric Company (Fritz) as an electrician. In September 1981, Fritz was the subcontractor and defendant was the general contractor for a construction project in Belleville, Illinois. On the morning of September 8, plaintiff, while at work on the construction site, walked to and entered a portable bathroom located between two multistory buildings under construction. Plaintiff testified that it had rained the day before and the ground at the construction site was slippery. Plaintiff remained in the bathroom for 10 to 15 minutes. Upon exiting the bathroom, plaintiff stepped down six to eight inches from the bathroom to the ground. Plaintiff looked up to ascertain whether construction materials were being thrown off a balcony above and near the bathroom. As plaintiff was looking upward, he took about two steps from the bathroom before he stepped into one of several tire ruts in the ground. Plaintiff stumbled in the rut and injured his back.

The tires of a Lull, a piece of heavy machinery used by bricklayers to lift or hoist heavy equipment, created the. ruts. The rut plaintiff stumbled in was about 4 to 5 ■inches deep, 8 to 10 inches wide, and was located directly in front of the bathroom. The ruts extended several feet to the right and left of the bathroom.

When plaintiff came out of the bathroom he looked up, not down, because workers had, in the past, thrown plasterboard and other construction materials off the balcony. Plaintiff testified that although workers were not throwing anything off the balcony that day, they had done so in the past. The evidence at trial did not reveal precisely when the workers had last thrown construction materials off the balcony.

Plaintiff did not see any ruts upon entering the bathroom, but he was not certain whether the ruts were present when he entered the bathroom. Plaintiff testified that nothing distracted him as he walked toward the bathroom. Although plaintiff stated he did not hear or notice any heavy equipment pass by while he was in the bathroom, he also testified that a Lull could have passed by without his noticing it because there was always loud noise at the construction site. Plaintiff stated that if he had watched where he was walking, he would have noticed the ruts when he exited the bathroom. Plaintiff testified the ruts were open and obvious.

Plaintiff has been a construction worker since 1957. He testified that dirt was normally present around construction sites and that ruts were often formed by heavy equipment moving around in the dirt. Plaintiff testified that workers and other individuals have to watch where they are walking to avoid ruts.

In order to succeed on a claim of negligence, a plaintiff must prove: “the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach.” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374.) Defendant contends it had no duty to plaintiff, as a matter of law, under the circumstances. Defendant therefore asserts its motions for directed verdict and judgment notwithstanding the verdict should have been granted.

Illinois has adopted the rules set forth in sections 343 and 343A of the Restatement (Second) of Torts regarding the duty of possessors of land to their invitees. Section 343 provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343, at 215-16 (1965).

Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 145-46, 151; Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468.

Section 343A provides the following exception to section 343:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts §343A(1), at 218 (1965).)

(Ward, 136 Ill. 2d at 149-51.) “Known” means “not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” (Restatement (Second) of Torts §343A, comment b, at 219 (1965).) “Obvious” denotes that “both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Restatement (Second) of Torts §343A, comment b, at 219 (1965).

Comment / to the Reporter’s Notes to section 343A explains further the duty of the possessor of land as set forth in section 343A:

“There are *** cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. *** In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. [Citation.] It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” (Emphasis added.) Restatement (Second) of Torts §343A, comment/, at 220 (1965).

Ward, 136 Ill. 2d at 149-51.

Comment/also contains these two examples:

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Cite This Page — Counsel Stack

Bluebook (online)
566 N.E.2d 239, 141 Ill. 2d 430, 152 Ill. Dec. 552, 1990 Ill. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deibert-v-bauer-bros-const-co-inc-ill-1990.