2018 IL App (1st) 162744
Ill. App. Ct.2018Background
- Plaintiff Steven Henderson slipped on a front stoop/step at a condominium complex (Lofts at Lake Arlington) after epoxy was applied by contractor Building Maintenance Systems, Inc. (BMS); he sustained serious injuries and sued the condominium association (Lofts), property manager Property Specialists, Inc. (PSI), and BMS for negligence.
- Lofts/PSI admitted the step was a common element and that PSI managed maintenance; Pierce (PSI) signed BMS’s 2008 proposal authorizing epoxy work; homeowners later complained the epoxy made surfaces slippery when wet.
- Henderson and resident Karen Popke (owner of the unit) each testified that Henderson had slipped there twice previously and that both had complained to PSI about slipperiness, but Henderson said the condition was not “etched in his mind” and he used the front entrance daily.
- Defendants moved for summary judgment invoking the open-and-obvious doctrine (and deliberate-encounter exception), arguing Henderson knew the risk and could have used a garage entrance; BMS joined that argument. Popke moved for summary judgment on BMS’s contribution claim asserting she had no duty.
- Trial court granted summary judgment to defendants and dismissed the case; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether open-and-obvious doctrine bars duty | Henderson: despite prior knowledge, it was foreseeable he could forget/be distracted at night/rain; duty remains under Ward distraction exception | Defendants: hazard was open and obvious; Henderson knew it and could use alternate safe entry; no duty | Reversed for Lofts/PSI/BMS — court found distraction/forgetfulness exception applied and duty existed; summary judgment improper |
| Whether deliberate-encounter exception applies | Henderson: exceptions to open-and-obvious apply (especially distraction) | Defendants: no evidence of distraction or deliberate encounter; safe alternative existed | Trial court considered deliberate-encounter only and rejected it; appellate court found distraction exception controlled and reversed summary judgment |
| Whether BMS can invoke open-and-obvious (despite not owning/controlling) | Henderson: open-and-obvious should not shield parties who created hazard | BMS: same protection should apply to all negligent parties | Appellate court reversed summary judgment for BMS on negligence claim (duty exists under exception) |
| Whether Popke liable for contribution to BMS | BMS: Popke, as unit owner, owed duty to maintain limited common elements and is liable for contribution | Popke: area is common element; she had no control/knowledge of epoxy work; no duty | Affirmed for Popke — no common law duty; area was common element for which association was responsible; contribution claim dismissed |
Key Cases Cited
- Ward v. K Mart Corp., 136 Ill. 2d 132 (1990) (open-and-obvious rule does not automatically eliminate duty where possessor should anticipate invitee distraction or momentary forgetfulness)
- Bucheleres v. Chicago Park District, 171 Ill. 2d 435 (1996) (explains open-and-obvious doctrine as exception to landowner duty and directs application of duty-factors)
- Sollami v. Eaton, 201 Ill. 2d 1 (2002) (describes distraction and deliberate-encounter exceptions to the open-and-obvious rule)