Illinois Appellate Court Allows Expert Testimony To Create Fact Questions Defeating Summary Judgment In “Open And Obvious” Premises Liability Case
January, 2011
by Melinda S. Kollross and Edward M. Kay
The Illinois Appellate Court, First District, holds that expert testimony opining that an unpainted ¾ inch rise in concrete of a wheelchair ramp was not an open and obvious condition is sufficient to defeat summary judgment. Alqadhi v. Standard Parking, Inc., et al., No.1-08-3554, 2010 WL 4517204 (Ill. App. 1st Dist.).
Facts
Plaintiff parking garage patron allegedly tripped and fell because defendants failed to mark a ¾ inch rise in concrete of a wheelchair-accessible ramp near the second-floor exit to defendants' garage. Defendants moved for summary judgment arguing that: (1) there was no foreseeable risk created by the raised concrete; and (2) the condition was open and obvious. Plaintiff countered with her own deposition testimony and an affidavit by a registered professional engineer. Plaintiff testified that the raised concrete created an optical illusion of a flat walking surface: "[i]t was all the same color and because it was a new building, they hadn't painted it yellow yet.... As you were walking, it all kind of looked the same." She described the lighting by the step as "low," "dim," "dark" and "bad." Plaintiff had admittedly parked in the garage before without incident, but said she normally parked on the fourth floor, where the ramp was marked with yellow contrast paint. She also admitted she probably would have seen the raised concrete if she had been looking downward.
Plaintiff's engineer expert acknowledged that the ramp was imprinted with a cross-hatched diamond pattern designed to warn pedestrians and that the imprint complied with the Americans with Disabilities Act of 1990 ("ADA"). He nevertheless found that:
The lack of contrast between the surface of the parking level and the curb ramp * * * disguised the abrupt change in vertical elevation between the parking level and those surfaces, and the abrupt change in vertical elevation as marked by Plaintiff on the proffered photograph at her deposition was not obvious. Application of contrast paint was essential * * *.
He further opined that the ¾ inch rise was a "dangerous tripping hazard" and that defendants' failure to mark the curb with contrast paint was the proximate cause of plaintiff's accident.
The trial court found that the raised concrete was an open and obvious condition and granted summary judgment to both defendants. Plaintiff appealed.
Analysis
The elements of a cause of action for negligence are: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and (3) an injury proximately caused by the breach. On appeal, plaintiff claimed that defendants owed her a duty to mark or paint "the step" at issue. The factors used to determine the existence of a duty include: (1) the likelihood of injury; (2) the reasonable foreseeability of such injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant. Whether defendants owed plaintiff a duty of reasonable care is a question of law for the court.
Defendants contended that "the step" was an open and obvious condition, negating any alleged duty owed to plaintiff. The open and obvious doctrine is an exception to the general duty of care owed by a landowner and in Illinois is based on §343A(1) of the Second Restatement of Torts, which states that: "[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."
The Illinois Supreme Court has held that the open and obvious doctrine implicates the first two factors of the traditional duty analysis: likelihood of injury and foreseeability. Where a condition is deemed open and obvious, the likelihood of injury is generally considered slight because it is assumed that people encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks. Injuries caused by open and obvious conditions are unlikely to be reasonably foreseeable as people will generally appreciate the risks associated with such conditions and exercise care for their own safety. A condition is open and obvious where a reasonable person in the plaintiff's position exercising ordinary perception, intelligence and judgment would recognize both the condition and the risk involved.
Normally where there is no dispute about the physical nature of the condition, the question of whether a condition is open and obvious is a legal one for the court. But, "where there is a dispute about the condition's physical nature, such as its visibility, the question of whether a condition is open and obvious is factual." Where a court cannot conclude as a matter of law that a condition poses an open and obvious danger, "the obviousness of the danger is for the jury to determine."
Here, the trial court found as a matter of law that the raised concrete causing plaintiff's injury was open and obvious. However, the Appellate Court disagreed based on the testimony of plaintiff's engineer expert, whose opinion "supported plaintiff's observations" that she was unable to appreciate the change in elevation from the parking lot and the curb, and that the lack of contrast created the "illusion" of walking on a flat surface. The expert specifically concluded that the lack of contrast paint "disguised" the change in vertical elevation between the parking lot and the curb, creating an impermissible tripping hazard that was "not obvious."
Defendants contrarily asserted that the unpainted curb was not a dangerous condition, describing the area as "well lit," the pavement as "smooth and free from defects" and the curb as visible and open and obvious. Defendants also suggested that the curb's compliance with the ADA militated against imposing a duty. But plaintiff's expert pointed out that while the curb ramp "would be safe for a wheelchair bound person," the lack of contrast paint creates a risk of tripping "for a person who is simply walking."
Citing the foregoing, the Appellate Court concluded that it could not characterize this case as one where there is "no dispute about the physical nature of the condition" -- and thus a question of fact existed as to whether the alleged condition presented an open and obvious risk.
The Appellate Court also rejected defendants' alternative argument that summary judgment should be affirmed under the "de minimis" rule, which "states that minor municipal sidewalk defects are generally not actionable" and has been extended to private landowners under certain circumstances. The Court stated: "both plaintiff and her expert testified to impaired visibility which concealed an otherwise minor defect....[w]e believe the testimony was sufficient to remove this case from application of the open and obvious doctrine and the de minimis rule."
Learning Point
This very pro-plaintiff opinion, including Justice Robert Gordon's special concurrence, lays out a "blueprint" for future plaintiffs to avoid summary judgment, stating that the use of expert testimony here that an illusion was created shows how issues of fact can be created to get to a jury trial. We expect plaintiffs to offer more expert testimony of this type in future "slip and fall" cases to try to create such factual issues where the condition is open and obvious. Clausen Miller has developed strategies for attacking the expert testimony so that we can argue that such expert testimony is just "junk science" or contrary to the "physical facts" such that it should not preclude summary judgment.
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