Foran Glennon Palandech Ponzi & Rudloff
Isnâ€™t It Obvious: Should the Open and Obvious Defense Extend to Architects?
InÂ The Hound of the Baskervilles, Sherlock Holmes, that renowned literary sleuth, remarks that â€śThe world is full of obvious things which nobody by any chance ever observes.â€ť Holmesâ€™ analysis rings frustratingly true to the defense bar. A neglectful pedestrian walks out of a building, oblivious to his surroundings. On cue, he trips over a standard-issue concrete wheel-stop in the parking lot. Naturally, the pedestrian files a complaint against the landowner on a premises liability theory. The plaintiff joins the parking lotâ€™s architect on a design negligence theory. At summary judgment, the landowner will likely prevail over the absent-minded plaintiff by demonstrating that the wheel-stop was an â€śopen and obviousâ€ť condition.Â See Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448 (1996);Â andÂ Restatement (Second) of Torts Â§343A (1965);Â See also Sepesy v. Archer Daniels Midland Co., 97 Ill. App. 3d 868 (1981) (â€śthe open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risksâ€ť). However, in a cruel legal twist, the design architect cannot advance the same â€śopen and obviousâ€ť defense.
Architects (and engineers) frequently find themselves drawn into lawsuits of this kind. The growing scarcity of trials incentivizes slip/trip-and-fall plaintiffs to sue as many defendants as possible, no matter how tenuous the underlying claim. After all, more defendants mean more potential revenue sources for settlement funding. For many parties, a nuisance settlement offer to resolve litigation is deemed more cost-effective than legal vindication. The true cost of this mentality is incurred over time, as the plaintiffsâ€™ bar has come to believe that every claimâ€”literally any claimâ€”has settlement value. However, despite the unavailability of the â€śopen and obviousâ€ť defense, the design professional may still have a path to dispositive relief.
Defense counsel can contend that the design feature in question was open and obvious (in as many words) by focusing the argument on the plaintiffâ€™s comparative faultÂ as a matter of law. True, determination of proximate cause is usually a fact question reserved for jury determination.Â Elliot v. Williams, 347 Ill. App. 3d 109 (2004). Calculating comparative negligence percentages is also within the juryâ€™s purview.Â SeeÂ Ill. Pattern Jury Instr.-Civ. B10.03 (West 2008). However, if the facts demonstrate that the plaintiff wouldÂ neverÂ be entitled to recover, proximate cause can be determined by the court as a matter of law.Â Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58 (2004) (â€śThe lack of proximate cause may be determined by the court as a matter of law where the facts alleged do not sufficiently demonstrate both cause in fact and legal causeâ€ť).
Proximate cause encompasses two separate concepts: actual cause and legal cause.Â Abrams, 211 Ill.2d at 258, citingÂ First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252 (1999). A defendantâ€™s actions are not considered a proximate cause of a plaintiffâ€™s injuries unless they areÂ bothÂ the actual and legal cause of the injuries under a two-part test.Â Galman, 188 Ill. 2d at 257-58. Under the first step, the court must determine whether the defendantâ€™s alleged negligence was a material and substantial factor in bringing about the injury. Abrams, 211 Ill. 2d at 258. Â A defendantâ€™s conduct is a material and substantial factor if, absent that conduct, the injury would not have occurred.Â Id. It seems, well, â€śobviousâ€ť that the cause of an injury is that which actually produces it.Â Thompson v. County of Cook, 154 Ill. 2d 374 (1993). Under the second step of the proximate cause analysis, the plaintiffâ€™s injuries must be of a type that a reasonably prudent person would see as a â€ślikelyâ€ť the result of the defendantâ€™s conduct.Â Abrams, 211 Ill. 2d at 258 (emphasis in original). It is not sufficient that the injuries are merely a conceivable result.Â Yager v. Illinois Bell Telephone Co., 281 Ill. App. 2d 903, 907 (1996). A defendantâ€™s conduct is the injuryâ€™s legal cause where it is so closely tied to the injury that it should be held responsible for it.Â Young v. Bryco Arms, 213 Ill. 2d 433; 821 NE 2d 1078 (2004). â€śThe proper inquiry regarding legal cause involves an assessment of foreseeability, in which [the court asks] whether the injury is of a type that a reasonable person would see as a likely result of the defendantâ€™s conduct.â€ťÂ Id.Â at 446-47 (emphasis original).
The two-step proximate cause test enables the design professional defendant to explore the design featureâ€™s open and obvious nature without explicitly raising the â€śopen and obviousâ€ť defense. In cases with significant evidence of the plaintiffâ€™s contributory negligence (for example, a lack of situational awareness so as to avoid an open and obvious condition), defense counsel would be wise to exhaust their ammunition on the first part of the proximate cause test. The court should be fully aware of plaintiffâ€™s carelessness. The plaintiffâ€™s contributory negligence must be so great that no sane or sober jury would find for the plaintiff at trial. Defense counsel can create a favorable initial impression with the court, and the plaintiff looks less like a victim, and more like Mr. Magoo.
The second part of the proximate cause test (the â€ślegal causeâ€ť test) gives defense counsel an opportunity to double down on the Plaintiffâ€™s contributory negligence. The court must see that the plaintiffâ€™s injuries are not the likelyÂ result of the defendantâ€™s design. Defendant architects should impart to the court that it was not foreseeable in the design stage, much less likely that someone would be as careless as the Plaintiff.
A 2016 Illinois case saw this exact analysis argued in court. An absent-minded plaintiff suffered personal injuries after a parking lot trip-and-fall, then sued the landowner on a premises liability theory, and the architect on a design negligence theory. The landowner moved for summary judgment on the basis of an open and obvious condition. The architect moved for summary judgment in part on the grounds that its project design was neither the legal or proximate cause of the plaintiffâ€™s injuries and sought a finding of contributory negligence as a matter of law. The trial court granted both dispositive motions.
While this analysis focuses on Illinois law, the legal principles can be applied nationwide. If more courts follow suit, architects and engineers should continue to pursue dispositive relief on comparative negligence principles. Perhaps courts may attempt to simplify this legal reasoning and find that the â€śopen and obviousâ€ť defense is obviously available to the architect.
Michael P. Sever of Foran Glennon (http://www.fgppr.com/) concentrates his practice in commercial litigation, construction litigation, casualty litigation, and professional liability defense. Â He has represented companies and design professionals in areas involving construction negligence, contract enforcement, trucking accidents, premises liability and personal injury defense.
By: Michael P. Sever