NO. 4-06-1008 Filed Eff. 9/5/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
SHANNON W. FORD, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Champaign County ROUND BARN TRUE VALUE, INC., d/b/a ) No. 05L243 SUNNYCREST TRUE VALUE; BODY FIRM, ) INC., d/b/a GOLD'S GYM; and DANIEL ) Honorable MARK McCULLEY, d/b/a GOLD'S GYM, ) Jeffrey B. Ford, Defendants-Appellees. ) Judge Presiding. ______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In October 2005, plaintiff, Shannon W. Ford, filed a
three-count negligence suit against defendants, Round Barn True
Value, Inc., doing business as Sunnycrest True Value (True
Value); Body Firm, Inc., doing business as Gold's Gym; and Daniel
Mark McCulley, doing business as Gold's Gym (Body Firm and
McCulley are hereinafter collectively referred to as Gold's Gym),
for his injury sustained in True Value's parking lot after he had
worked out at Gold's Gym. In January 2006, Gold's Gym filed a
motion to dismiss plaintiff's complaint pursuant to section 2-619
of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619
(West 2004)). After a March 2006 hearing, the trial court
granted Gold's Gym's motion to dismiss. In June 2006, True Value
filed a motion for summary judgment. After an October 2006
hearing, the court granted summary judgment in favor of True
Value. Plaintiff appeals, contending the trial court erred by
granting (1) Gold's Gym's motion to dismiss and (2) True Value's
motion for summary judgment. We affirm.
I. BACKGROUND
According to plaintiff's deposition, on October 20,
2003, he had been a member of Gold's Gym on Colorado Avenue in
Urbana, Illinois, for approximately a year and half. Between 7
and 9 p.m. that evening, plaintiff rode his motorcycle to Gold's
Gym to work out. After driving around Gold's Gym's parking lot
and observing no empty parking spaces, plaintiff rode his motor-
cycle into True Value's parking lot, which was adjacent to Gold's
Gym. True Value was closed when plaintiff entered the parking
lot. Plaintiff parked his motorcycle in True Value's parking lot
and went into Gold's Gym. He had parked at True Value when at
Gold's Gym on about 20 times prior to that evening.
While plaintiff had never discussed parking at True
Value with anyone at Gold's Gym or True Value, Gold's Gym had a
sign posted on its front door and bulletin board that stated the
following:
"ATTENTION MEMBERS:
TRUE VALUE HAS BEEN KIND ENOUGH TO LET
US USE THEIR PARKING LOT--SO PLEASE DO NOT
ABUSE THIS PRIVILEGE.
PLEASE ONLY PARK ON THE EAST SIDE OF THE
- 2 - LOT BEFORE 6PM SO THEY HAVE ROOM FOR THEIR
CUSTOMERS.
THANK YOU FOR BEING COURTEOUS, AND RE-
MEMBER TO SHOP TRUE VALUE FOR ALL YOUR HOUSE-
HOLD NEEDS." (Emphases in original.)
Plaintiff worked out for about 30 to 45 minutes. After
the workout, plaintiff returned to his motorcycle. He started
the motorcycle and proceeded to the parking lot's exit that faced
Philo Avenue at a speed of between 10 to 15 miles per hour. As
plaintiff approached the exit, he slowed down to around three
miles per hour to watch for oncoming traffic. He then spotted
several potholes with gravel around them. Plaintiff was about 10
feet away from the gravel when he saw it. Plaintiff continued to
brake and drove to the left side of one of the potholes to avoid
it. On the exit's decline to the street, plaintiff's motorcycle
caught some gravel from the pothole, which caused the motorcycle
to tilt toward the left. Plaintiff put his left foot down to
brace the motorcycle and jammed his left tibia against the
concrete. Plaintiff was able to keep the motorcycle up and put
the kickstand down. Plaintiff then fell off the motorcycle
because he could not walk. He had suffered a fracture to his
tibial plateau. At the time of the accident, it was dusk, the
weather was warm and clear, and the pavement was dry.
Plaintiff also stated he had driven through the area
- 3 - where the accident had occurred on prior visits to Gold's Gym.
He also indicated he was aware a motorcycle could slip and slide
on gravel at low speeds.
In his deposition, Lance Cooper, the True Value manager
and son of the owners, testified he was aware of a pothole
existing on October 20, 2003, but did not have any recollection
of loose gravel inside or around the pothole. Lance described
the pothole as shallow and estimated it at no more than an inch
in depth. The parking lot was paved with blacktop and could have
had broken blacktop, which Lance defined as granules of blacktop.
The pothole was located in an area that sloped to the street.
After Lance became aware of plaintiff's accident, he inspected
the area of the parking lot where the accident occurred. Lance
stated the pothole was of shallow depth and that he had person-
ally driven over it. He did see loose blacktop in the area but
did not consider it to be a potential hazard.
Lance also indicated he drove a motorcycle and had
driven it on True Value's parking lot in the area at issue before
October 20, 2003. He denied having encountered loose blacktop or
having any problems. Lance believed encountering loose blacktop
while slowing down on a motorcycle could present a hazard. He
was unaware of any other accidents resulting from the pothole at
issue and had no knowledge of anyone complaining about the
pothole.
- 4 - We note other depositions were taken and included in
the record but are not necessary to our resolution of the issues
on appeal.
On October 19, 2005, plaintiff filed a three-count
negligence complaint against True Value and Gold's Gym. In
November 2005, True Value filed an answer and asserted three
affirmative defenses to plaintiff's complaint. In January 2006,
Gold's Gym filed a section 2-619 motion to dismiss, asserting it
did not own, maintain, or control the parking lot on which
plaintiff was injured. Attached to the motion was an affidavit
by McCulley. In the affidavit, he stated that, at the time of
the accident, True Value allowed customers visiting Gold's Gym to
use its parking lot. Neither he nor Body Firm had any ownership
interest in True Value's parking lot. Additionally, neither he
nor Body Firm had ever requested, performed, or paid for any
upkeep, maintenance, or repairs on True Value's parking lot.
Plaintiff filed a response to the motion to dismiss but did not
attach any counteraffidavits or in any other way challenge
McCulley's affidavit. After a March 2006 hearing, the trial
court granted Gold's Gym's motion to dismiss.
In June 2006, True Value filed a motion for summary
judgment, asserting (1) it had no duty to warn because the gravel
was an open and obvious condition, (2) it did not owe plaintiff a
duty of reasonable care because he was a trespasser, (3) the
- 5 - gravel was not an unreasonably dangerous condition, and (4) True
Value did not have actual or constructive notice of the dangerous
condition. In September 2006, plaintiff filed a response to True
Value's summary judgment motion, to which he attached his affida-
vit. In his affidavit, plaintiff indicated he was going to exit
onto Colorado Avenue, not Philo Avenue as he had stated in his
deposition. He also stated that, when he first observed the
pothole, he did not see the gravel strewn around it. Plaintiff
noted he only saw the pothole from 10 feet away, not the gravel.
He went to the left to avoid the pothole and redirected his
attention toward the traffic on Colorado Avenue. While he was
able to avoid the pothole, he could not avoid the gravel around
it. Immediately before encountering the gravel, his attention
had been on the traffic on Colorado Avenue. In October 2006,
True Value filed a motion to strike plaintiff's affidavit.
In October 2006, the trial court held a joint hearing
on True Value's motion for summary judgment and its motion to
strike plaintiff's affidavit. While the court did not expressly
state it was striking plaintiff's affidavit, the court declared
plaintiff was bound by his deposition testimony. The court
further found True Value did not owe plaintiff a duty because the
condition was open and obvious and that plaintiff was a tres-
passer at the time of the accident. In accordance with its
findings, the court granted summary judgment in favor of True
- 6 - Value. This appeal followed.
II. ANALYSIS
A. Gold's Gym's Motion To Dismiss
Plaintiff first asserts the trial court erred in
granting Gold's Gym's motion to dismiss.
With a motion to dismiss under section 2-619 of the
Procedure Code (735 ILCS 5/2-619 (West 2004)), the movant admits
the legal sufficiency of the plaintiff's complaint but asserts an
affirmative defense or other matter that avoids or defeats the
plaintiff's claim. Such a motion presents a question of law, and
thus our review of the trial court's ruling on the motion is de
novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229,
236 (2006). Moreover, in ruling on a section 2-619 motion to
dismiss, a court may consider pleadings, depositions, and affida-
vits. When affidavits in support of the motion have not been
challenged or contradicted by appropriate methods, the court
deems admitted the facts stated in the supporting affidavits.
Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248,
262, 807 N.E.2d 439, 447 (2004).
To prevail in a negligence action, a plaintiff's
complaint must set forth facts establishing the existence of (1)
a duty owed by the defendant to the plaintiff, (2) a breach of
that duty, and (3) an injury proximately caused by that breach.
Marshall v. Burger King Corp., 222 Ill. 2d 422, 430, 856 N.E.2d
- 7 - 1048, 1053 (2006). Citing Hanks v. Mount Prospect Park District,
244 Ill. App. 3d 212, 217-18, 614 N.E.2d 135, 139 (1993), in its
motion to dismiss, Gold's Gym asserted plaintiff could not
establish it owed him a duty because his injury occurred on land
owned by and under the control of True Value. In Hankes, 244
Ill. App. 3d at 213, 614 N.E.2d at 136, the plaintiff was struck
by a car when crossing a private parking lot owned by another
party after she had been playing on a playground owned by defen-
dant that was directly south of the parking lot. The court found
the defendant did not owe a duty to plaintiff because the injury
occurred on land that was not owned or controlled by the defen-
dant. Hanks, 244 Ill. App. 3d at 218, 614 N.E.2d at 139.
Plaintiff contends this case is distinguishable from
Hanks and Gold's Gym owed him a duty based upon its status as a
landowner and other common-law principles.
Generally, "[a] landowner has a duty to provide a safe
means of ingress and egress to his premises for his invitees."
Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 902, 735 N.E.2d
758, 764 (2000). Depending on the particular facts of the case,
that duty may extend beyond the precise boundaries of such
premises. Abdo v. Trek Transportation Co., 221 Ill. App. 3d 493,
497, 582 N.E.2d 247, 251 (1991).
With sidewalks, a landowner will not ordinarily be held
liable for injuries sustained on a public sidewalk under a
- 8 - municipality's control, even where the sidewalk may also be used
for ingress or egress to the landowner's premises. Friedman v.
City of Chicago, 333 Ill. App. 3d 1070, 1073, 777 N.E.2d 430, 433
(2002). However, if the landowner appropriates the sidewalk for
its own use, the landowner then has a duty to insure the sidewalk
is safe. Dodd v. Cavett Rexall Drugs, Inc., 178 Ill. App. 3d
424, 432, 533 N.E.2d 486, 491 (1988). In cases where the land-
owner has been held to have appropriated a sidewalk for its own
use, the courts have found the owner performed an affirmative act
of appropriation. Dodd, 178 Ill. App. 3d at 432, 533 N.E.2d at
491. Plaintiff cites two such sidewalk cases.
In McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d
345, 348, 272 N.E.2d 369, 371 (1971), the plaintiff was injured
when she stepped into a hole in a parkway owned by the city and
located across a public sidewalk from the parking lot maintained
by the defendant for its tavern and bowling patrons. The side-
walk adjacent to the defendant's parking lot was regularly used
by the defendant's patrons for parking purposes, which blocked it
for normal use by the patrons. McDonald, 1 Ill. App. 3d at 352,
272 N.E.2d at 374. The McDonald court noted plaintiff had
exercised the only means of egress made available by the defen-
dant. McDonald, 1 Ill. App. 3d at 353, 272 N.E.2d at 374.
Additionally, the owner of the business testified he had known of
a defect at issue for some time. McDonald, 1 Ill. App. 3d at
- 9 - 350, 272 N.E.2d at 372.
In Cooley v. Makse, 46 Ill. App. 2d 25, 27, 196 N.E.2d
396, 397 (1964), the plaintiff fell some two or three feet from a
tavern's concrete steps on a brick walk that was on a city-owned
easement. The brick walk was a means of ingress and egress to
the tavern building as it provided the only access to the front
door. Cooley, 46 Ill. App. 2d at 28, 30, 196 N.E.2d at 397-98.
The Cooley court found the normal use of the tavern's entrance by
an invitee presupposed the normal use of the brick walk where the
plaintiff was injured. Cooley, 46 Ill. App. 2d at 32, 196 N.E.2d
at 399. Both the tenant tavern owner and the landlord knew or
should have known of the brick walk's condition. Cooley, 46 Ill.
App. 2d at 31, 196 N.E.2d at 398-99.
In this case, we are not dealing with an accident on an
adjacent public sidewalk or other public property as in Coley and
McDonald. We have an accident on adjacent private property as in
Hanks. McCulley stated in his affidavit that True Value allowed
customers of Gold's Gym to use True Value's parking lot. As
plaintiff stated in paragraph six of both counts against Gold's
Gym, True Value controlled and maintained the parking lot.
McCulley's affidavit also indicated Gold's Gym did not in any way
participate in the maintenance or repairs of True Value's parking
lot. Moreover, no facts were alleged that Gold’s Gym's in any
way altered True Value's parking lot, interfered with True
- 10 - Value's control and/or maintenance of its property, or treated
True Value's parking lot as its own. Thus, the facts indicate
True Value retained all control and maintenance of the parking
lot and Gold's Gym was merely given permission to have its
customers use True Value's parking lot. We disagree with plain-
tiff that Gold’s Gym's communication of True Value's permission
to use its parking lot was an affirmative act of appropriation.
We also disagree Hanks is distinguishable because Gold's Gym
informed its customers they could park on True Value's parking
lot. Accordingly, we find Gold's Gym did not owe a duty to
plaintiff as the adjacent property owner.
Moreover, we agree with Gold's Gym that plaintiff has
forfeited his other arguments challenging the trial court's
dismissal by failing to cite authority as required by Supreme
Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)). See In re
Estate of Doyle, 362 Ill. App. 3d 293, 301, 838 N.E.2d 355, 362-
63 (2005).
Thus, we find the trial court did not err by granting
Gold's Gym's motion to dismiss.
B. True Value's Motion for Summary Judgment
Plaintiff also contends the trial court erred by
granting True Value's summary-judgment motion.
A grant of summary judgment is appropriate when the
pleadings, depositions, admissions, and affidavits demonstrate no
- 11 - genuine issue of material fact exists and the movant is entitled
to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West
2004); Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d
195, 214-15, 850 N.E.2d 183, 195 (2006). While summary judgment
aids in the expeditious disposition of a lawsuit, it is a drastic
means of disposing of litigation and thus should be allowed only
when the right of the moving party is clear and free from doubt.
Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43, 809
N.E.2d 1248, 1256 (2004). We review de novo the trial court's
grant of a motion for summary judgment. See Governmental
Interinsurance Exchange, 221 Ill. 2d at 215, 850 N.E.2d at 195.
In determining whether a defendant owed plaintiff a
duty, courts consider the following: (1) the reasonable
foreseeability and (2) the likelihood of injury, and (3) the
magnitude of the burden on the defendant in guarding against
injury and (4) the consequences of placing that burden on the
defendant. LaFever v. Kemlite Co., 185 Ill. 2d 380, 389, 706
N.E.2d 441, 446 (1998). When a plaintiff alleges an injury
caused by a condition on a defendant's property while on the
property as an invitee, this court analyzes the foreseeability
factor under section 343 of the Restatement (Second) of Torts
(Restatement) (Restatement (Second) of Torts §343 (1965)).
LaFever, 185 Ill. 2d at 389, 706 N.E.2d at 447. Section 343
states, in pertinent part, the following:
- 12 - "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." Restate-
ment (Second) of Torts §343, at 215-16
(1965).
Our supreme court has adopted section 343A of the
Restatement (Restatement (Second) of Torts §343A (1965)), which
provides an "open and obvious hazard" exception to the duty of
care established in section 343. LaFever, 185 Ill. 2d at 390,
706 N.E.2d at 447. Section 343A(1) states:
"A possessor of land is not liable to
his invitees for physical harm caused to them
by any activity or condition on the land
- 13 - 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).
The Restatement defines "known" as "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). Something is "obvious" if
"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). We note plaintiff's cite to Deibert v. Bauer Brothers
Construction Co., 141 Ill. 2d 430, 434-35, 566 N.E.2d 239, 241
(1990), is incorrect as the supreme court quoted the same
Restatement definition of "obvious" that we have, which does not
mention protecting oneself against the condition. See Deibert,
141 Ill. 2d at 435, 566 N.E.2d at 241, quoting Restatement
(Second) of Torts §343A(1), at 218 (1965).
Here, plaintiff saw the gravel around the pothole when
he was 10 feet away from it. Moreover, plaintiff was aware that
riding on gravel at slow speeds could cause a motorcycle to slip.
Since plaintiff was aware of the gravel and the risk it posed at
- 14 - slow speeds, the gravel met the Restatement's definition of a
"known" condition.
The gravel also met the Restatement's definition of an
"obvious" condition. Plaintiff saw the gravel 10 feet before he
encountered it and did not testify or allege the gravel was
hidden or obscured from view in any way. Lance also testified
loose blacktop was visible around the pothole when he inspected
it sometime after the accident. Moreover, Lance, who also rode a
motorcycle, was aware gravel was a potential hazard for
motorcycles at slow speeds. Thus, a reasonable person in
plaintiff's position would recognize the condition and the risk
associated with it. Further, the gravel is similar to the rut
found to meet the "obvious" definition in Deibert, 141 Ill. 2d at
438, 566 N.E.2d at 243. There, the plaintiff indicated that, if
he had watched where he was walking, he would have seen the rut.
Also, no evidence was presented the rut was concealed or hidden
in any way. Deibert, 141 Ill. 2d at 438, 566 N.E.2d at 243.
Accordingly, we find the undisputed facts demonstrate
the gravel was a known and obvious condition in this case.
However, the section 343A(1) exception has its own
exception for when "the possessor should anticipate the harm
despite such knowledge or obviousness." Restatement (Second) of
Torts §343A(1), at 218 (1965). A possessor should anticipate
harm to an invitee when the possessor "has reason to expect that
- 15 - 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." Restatement (Second) of
Torts §343A, Comment f, at 220 (1965).
Primarily, when Illinois courts have applied the
distraction exception to impose a duty upon a landowner, the
facts were clear "the landowner created, contributed to, or was
responsible in some way for the distraction which diverted the
plaintiff's attention from the open and obvious condition and,
thus, was charged with reasonable foreseeability that an injury
might occur." Sandoval v. City of Chicago, 357 Ill. App. 3d
1023, 1030, 830 N.E.2d 722, 729 (2005). Here, plaintiff saw the
condition that caused his injury when he was 10 feet away from it
and chose to drive over it. Plaintiff did not testify he forgot
about the gravel after he saw it or failed to protect himself
from it due to a distraction. Moreover, assuming, arguendo,
plaintiff was distracted by traffic conditions, True Value did
not create, contribute to, or take responsibility for the traffic
on the adjacent public street. Plaintiff has failed to cite any
authority where the distraction exception was applied to a
distraction created by the general public.
Thus, under Restatement section 343A, plaintiff's
injury was not reasonably foreseeable. As to the other three
factors, gravel is something most people encounter on a daily
- 16 - basis without injury. Plaintiff himself testified he had driven
over gravel before without incident. Thus, the likelihood of
injury is small. Further, to guard against injury, a parking lot
owner would have to keep the lot free of gravel, which would be a
great burden as gravel is usually found on parking lots. Last,
requiring parking lots to be free of gravel would have
significant consequences as landowners would have to constantly
monitor their parking lots to keep them gravel free.
Accordingly, we find True Value did not owe plaintiff a duty even
if he was an invitee. Since no duty existed to plaintiff if he
was an invitee, summary judgment in favor of True Value was
appropriate, and we need not address the other issues raised by
plaintiff.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
APPLETON, P.J., concurs.
MYERSCOUGH, J., specially concurs.
- 17 - JUSTICE MYERSCOUGH, specially concurring:
While I specially concur in the majority's decision, I
write separately to acknowledge reservations about the continued
viability of the open-and-obvious doctrine in our comparative-
negligence system. Whether an open and obvious danger can
function to eliminate a landowner's duty of reasonable care he
owes an invitee is disputed among various states. Some
jurisdictions adopting comparative-negligence principles have
chosen to eliminate the doctrine (Rockweit v. Senecal, 197 Wis.
2d 409, 422, 541 N.W.2d 742, 748 (1995); Robertson v. Magic
Valley Regional Medical Center, 117 Idaho 979, 980, 793 P.2d 211,
212 (1990)) while others have upheld it (Armstrong v. Best Buy
Co., 99 Ohio St. 3d 79, 788 N.E.2d 1088 (2003) (an Ohio supreme
court case including an excellent discussion of the continuing
viability of the open-and-obvious doctrine); Groleau v. Bjornson
Oil Co., 2004 ND 55, ¶¶15-24, 676 N.W.2d 763, 769-72 (N.D.
2004)).
Our supreme court has addressed the issue of whether to
abandon the doctrine in light of the operative comparative-fault
principles and has, so far, declined to do so. In Ward v. K mart
Corp., 136 Ill. 2d 132, 146, 554 N.E.2d 223, 229 (1990), a man
was injured when he left a K mart store carrying a large mirror
and ran into a pole outside the store's exit. The court held
that the no-duty rule for open and obvious dangers has fallen
- 18 - under "harsh criticism" but rejected plaintiff's contention that
the court should abandon the doctrine in light of comparative
negligence. See also Bucheleres v. Chicago Park District, 171
Ill. 2d 435, 455-56, 665 N.E.2d 826, 835-36 (1996) (holding that
swimmers who were injured while diving into Lake Michigan off of
a concrete wall were presented with an open and obvious danger
despite the park district's recent manipulation of the bottom of
the lake which made the lake much shallower in the area the
swimmers were diving); but see Bucheleres, 171 Ill. 2d at 463-68,
665 N.E.2d at 839-41 (Harrison, J., dissenting) (arguing in
support of other jurisdictions that, upon enacting comparative-
fault legislation, abandoned the open-and-obvious doctrine as a
complete bar to plaintiff's recovery).
Recently, in Blue v. Environmental Engineering, Inc.,
215 Ill. 2d 78, 101-08, 828 N.E.2d 1128, 1144-48 (2005), our
supreme court also addressed the open-and-obvious doctrine's
relation to the duty analysis in a premises-liability claim.
Although Blue dealt with a products-liability claim, the court
spent a great deal of time discussing the open-and-obvious
doctrine as it applies in premises-liability cases for purposes
of comparison to the products-liability claim before the court.
Because our supreme court continues to respect the
open-and-obvious doctrine as an exception to defendant's duty, I
concur in the majority's decision. However, our court may be
- 19 - following an analytically flawed approach to duty in premises-
liability actions.
Justice Harrison's dissent in Bucheleres recognized
that "[i]t is a harsh and unjust principle of law yielding
results that are often cruel, if not bizarre." Bucheleres, 171
Ill. 2d at 464, 665 N.E.2d at 840 (Harrison, J., dissenting).
In Groleau, a North Dakota Supreme Court case, Justice Maring
presents a compelling argument for the abolition of the doctrine
finding it inconsistent with that state's comparative-negligence
system. Groleau, 2004 ND ¶¶27-41, 676 N.W.2d at 772-76 (Maring,
J., concurring in part and dissenting in part). Maring argues
that rather than be a complete bar to recovery, the openness and
obviousness of a danger should be a factor for the jury to assess
in determining comparative fault. Groleau, 2004 ND ¶33, 676
N.W.2d at 773 (Maring, J., concurring in part and dissenting in
part). Both Justice Maring's opinion and Justice Harrison's
dissent note that in a framework of comparative negligence, the
open-and-obvious doctrine has no continued validity.
Justice Maring finds that allowing the open and obvious
dangers to function as a complete bar to plaintiff's recovery is
tantamount to applying discarded principles of contributory
negligence. Justice Maring recognizes that prior to enactment of
comparative-fault principles, how open or how obvious the danger
was irrelevant because under the common law a plaintiff's
- 20 - encounter with an open and obvious danger was a complete bar to
recovery. Under principles of comparative fault, how open and
how obvious the danger is should be considered in assessing the
comparative faults of the plaintiff and the owner of the
premises.
Relegating the open-and-obvious doctrine to a question
of fact to be weighed by the fact finder, rather than a complete
bar to recovery as a matter of law, seems more consistent with
our comparative-fault principles. Nonetheless, the doctrine
continues to apply in Illinois, and I concur as the majority has
correctly applied it in this case.
- 21 -