Bujnowski v. Birchland, Inc.
37 N.E.3d 385
Ill. App. Ct.2015Background
- Plaintiff Krysztof Bujnowski, a paying customer at Fourth Lake Resort, dove head‑first off a pier on July 1, 2012 and suffered a broken neck after striking the lake bottom.
- Plaintiff was an experienced swimmer, had visited the resort previously, saw others dive that day, did not measure depth, and could not see bottom because water was murky.
- Resort posted a general “Beach Regulations” sign (including “Diving in shallow water is not permitted”) near the entrance but had no employees monitoring the pier.
- Defendant moved for summary judgment arguing the danger of diving into water of unknown depth is open and obvious and thus it owed no duty.
- Plaintiff argued defendant (as possessor of land and payor) owed an invitee duty to warn or protect and that the open‑and‑obvious rule did not bar duty because defendant could and should foresee diving and could post closer warnings.
- Trial court granted summary judgment for defendant; appellate court affirmed, holding the danger was open and obvious, no exception applied, and no duty existed as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant owed a duty to plaintiff who dove into lake from pier | Bujnowski: as a paying invitee, defendant owed duty to warn/protect under premises‑liability standard | Birchland: no duty because the risk of diving into water of unknown depth is open and obvious | Held: No duty as a matter of law; risk was open and obvious |
| Whether the open‑and‑obvious doctrine is defeated by exceptions (distraction or deliberate‑encounter) | Bujnowski: defendant should have anticipated diving and could post warnings near pier; thus duty remains | Birchland: no exception applies—plaintiff was not distracted nor acting under compulsion | Held: No exception applied (neither distraction nor deliberate‑encounter) |
| Whether the presence of the pier or prior successful dives by others altered the open‑and‑obvious nature of the hazard | Bujnowski: pier and others’ dives made hazard less obvious and created factual dispute | Birchland: pier did not create a new, hidden risk; uncertainty of depth remains an obvious hazard | Held: Pier did not change the open‑and‑obvious nature; Dowen controls—pier does not create a new risk |
| Appropriateness of summary judgment on open‑and‑obvious duty question | Bujnowski: factual disputes (observations that day, others diving) should preclude summary judgment | Birchland: question is legal—open‑and‑obvious is resolved as a matter of law here | Held: Summary judgment appropriate; open‑and‑obvious determined as law on these facts |
Key Cases Cited
- Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435 (Ill. 1996) (open‑and‑obvious risks from diving into large bodies of water ordinarily bar duty; consider four‑factor test but public‑access burdens may preclude imposing duty)
- Dowen v. Hall, 191 Ill. App. 3d 903 (Ill. App. Ct. 1989) (risk of flat dive into muddy lake of uncertain depth is open and obvious to a reasonable adult)
- Ward v. Kmart Corp., 136 Ill. 2d 132 (Ill. 1990) (open‑and‑obvious rule does not automatically eliminate duty; consider distraction exception and four‑factor duty test)
- Sollami v. Eaton, 201 Ill. 2d 1 (Ill. 2002) (open‑and‑obvious doctrine bars duty to warn where no exception applies; suggested limited role for last two factors)
- Blue v. Env’t Eng’g, Inc., 215 Ill. 2d 78 (Ill. 2005) (discusses scope of open‑and‑obvious rule in product/premises contexts and treats duty as a legal question)