A common fact scenario in a premises liability case is the plaintiff who is injured tripping over a large box, pallet, basket, display, etc. while shopping at the defendant’s retail store. When a defense attorney gets a case like this, the first thing that should come to mind is: this is “open and obvious.” The client will almost always inquire about our chances of prevailing on a motion for summary judgment. Until recently, our response has typically been that there is a strong argument that the condition was open and obvious, but all the plaintiff had to say to defeat such a motion was that he was “distracted.” The distraction could be just about anything related to the business—from all the pretty merchandise he was looking to buy from the defendant’s store, to a crying baby in the cart next to him, to the employees stocking shelves next to him—and chances are good that the court would hold the distraction exception to apply and the case would proceed to a jury. It has been a difficult exception for a defendant business to overcome ever since Ward v. K-Mart, where the Court held that a plaintiff who walked into a large concrete post was distracted by the large item he was carrying.
But now, promisingly, the Illinois Supreme Court has recently released an opinion regarding the open and obvious doctrine and the limits of the distraction exception. On September 18, 2014, the Supreme Court issued its opinion in Bruns v. The City of Centralia, reversing the appellate court and upholding the trial court’s order granting summary judgment in favor of the defendant.
In Bruns, the plaintiff tripped on a crack in the sidewalk while on her way to a scheduled eye appointment. The parties agreed that the sidewalk defect was open and obvious, but disagreed as to the applicability of the distraction exception. The “distraction exception” applies where the possessor of land 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 this case, the only distraction identified by plaintiff was that her attention was fixed on the door and steps of the clinic. The Supreme Court concluded that the mere fact of looking elsewhere does not constitute a distraction:
We note that the concept of foreseeability is not boundless. That something “might conceivably occur,” does not make it foreseeable. . . .Rather, something is foreseeable only if it is “objectively reasonable to expect.” In the absence of evidence of an actual distraction, we disagree with plaintiff that it was objectively reasonable for the City to expect that a pedestrian, generally exercising reasonable care for her own safety, would look elsewhere and fail to avoid the risk of injury from an open and obvious sidewalk defect. The plaintiff’s position is contrary to the very essence of the open and obvious rule: because the risks are obvious, the defendant “’could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition.’” . . . Were we to conclude, as plaintiff does, that simply looking elsewhere constitutes a legal distraction, then the open and obvious rule would be upended and the distraction exception would swallow the rule.
This is a favorable ruling from a defense perspective, as the court finally appears to be limiting the “distraction exception” so it can no longer be used to automatically overcome the open and obvious defense. We hope to test the applicability and bounds of the Bruns case as a defense with our future and current cases involving the open and obvious doctrine.