Rather Shallow – Man Broke His Neck Diving Into Lake; Risk Deemed Open and Obvious (IL)


Bujnowski v. Birchland, Inc. (Illinois)
(not published)

The plaintiff was visiting a recreational area operated by the defendant.  He dove off a pier into a lake on the property and broke his neck.  He sued the defendant alleging that the defendant had no employees monitoring the area, and that the defendant was negligent in failing to supervise or train customers properly on the use of the are and failing to warn them of the dangers of using the area.  The defendant filed a motion for summary judgment on the basis that it did not owe a duty to plaintiff because the danger of diving into water was open and obvious.  The trial court granted the defendant’s motion, and the plaintiff appealed.

Plaintiff argued that as an invitee to the premises, defendant “defendant was liable for any injury caused by its failure to exercise reasonable care to protect him against a condition of which defendant (1) knew or should have known; (2) should have realized posed an unreasonable risk; and (3) should have expected that plaintiff would not discover or protect himself against.”  Additionally, plaintiff argued that even if the danger was known or obvious, the defendant “owed him a duty if it should have anticipated the harm anyway.”  Defendant argued that under the Premises Liability Act, a possessor of land owes any non-trespasser a “duty of reasonable care.”  The defendant also asserted that even though and open and obvious danger does not, in and of itself, bar a duty, the plaintiff had no basis to raise the “distraction” exception, under which a defendant has a duty if he case reasonably foresee that the plaintiff’s attention will be taken off the condition.

After reviewing the applicable caselaw in detail, the Appellate Court of Illinois affirmed the trial court’s decision.  As the first part of its analysis, the Court “easily resolved” that the risk encountered by plaintiff was, in fact, open and obvious.  In reaching that conclusion, the Court explained that “the application of the open-and-obvious rule depends not on the reasonableness of the particular plaintiff’s conduct, but on what it is reasonable for the defendant to anticipate.”  As the second part of its analysis, the Court concluded that no exception to the open and obvious rule applied.  Plaintiff had “never contended either that he was distracted from the risk or that some sort of compulsion made it reasonably foreseeable that he would proceed to encounter the known risk as the lesser evil.”

As the third and final part of its analysis, the Court reviewed whether the burden that the defendant would incur if it owed a duty to plaintiff, and the consequences of imposing that burden, outweighed the open and obvious nature of the risk and the unforeseeable nature of the injury.  In affirming the trial court’s decision, the Court explained that “[n]o published premises liability negligence case that we have found held both (1) that the open-and-obvious rule applied without exception and (2) that the defendant nonetheless owed the plaintiff a duty.”

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