Foran Glennon Palandech Ponzi & Rudloff

May 2017

Isn’t It Obvious: Should the Open and Obvious Defense Extend to Architects?

In The Hound of the Baskervilles, Sherlock Holmes, that renowned literary sleuth, remarks that “The world is full of obvious things which nobody by any chance ever observes.” Holmes’ 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 lot’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 “open and obvious” condition. See Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448 (1996); and Restatement (Second) of Torts §343A (1965); See also Sepesy v. Archer Daniels Midland Co., 97 Ill. App. 3d 868 (1981) (“the 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 risks”). However, in a cruel legal twist, the design architect cannot advance the same “open and obvious” 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 plaintiffs’ bar has come to believe that every claim—literally any claim—has settlement value. However, despite the unavailability of the “open and obvious” 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 plaintiff’s comparative fault as a matter of law. True, determination of proximate cause is usually a fact question reserved for jury determination. Elliot v. Williams, 347 Ill. App. 3d 109 (2004). Calculating comparative negligence percentages is also within the jury’s purview. See Ill. Pattern Jury Instr.-Civ. B10.03 (West 2008). However, if the facts demonstrate that the plaintiff would never be entitled to recover, proximate cause can be determined by the court as a matter of law. Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58 (2004) (“The 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 cause”).

Proximate cause encompasses two separate concepts: actual cause and legal cause. Abrams, 211 Ill.2d at 258, citing First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252 (1999). A defendant’s actions are not considered a proximate cause of a plaintiff’s injuries unless they are both the actual and legal cause of the injuries under a two-part test. Galman, 188 Ill. 2d at 257-58. Under the first step, the court must determine whether the defendant’s alleged negligence was a material and substantial factor in bringing about the injury. Abrams, 211 Ill. 2d at 258.  A defendant’s conduct is a material and substantial factor if, absent that conduct, the injury would not have occurred. Id. It seems, well, “obvious” that the cause of an injury is that which actually produces it. Thompson v. County of Cook, 154 Ill. 2d 374 (1993). Under the second step of the proximate cause analysis, the plaintiff’s injuries must be of a type that a reasonably prudent person would see as a “likely” the result of the defendant’s conduct. Abrams, 211 Ill. 2d at 258 (emphasis in original). It is not sufficient that the injuries are merely a conceivable result. Yager v. Illinois Bell Telephone Co., 281 Ill. App. 2d 903, 907 (1996). A defendant’s conduct is the injury’s legal cause where it is so closely tied to the injury that it should be held responsible for it. Young v. Bryco Arms, 213 Ill. 2d 433; 821 NE 2d 1078 (2004). “The 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 defendant’s conduct.” Id. at 446-47 (emphasis original).

The two-step proximate cause test enables the design professional defendant to explore the design feature’s open and obvious nature without explicitly raising the “open and obvious” defense. In cases with significant evidence of the plaintiff’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 plaintiff’s carelessness. The plaintiff’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 “legal cause” test) gives defense counsel an opportunity to double down on the Plaintiff’s contributory negligence. The court must see that the plaintiff’s injuries are not the likely result of the defendant’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 plaintiff’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 “open and obvious” defense is obviously available to the architect.

Michael P. Sever of Foran Glennon ( concentrates his practice in commercial litigation, construction litigation, casualty litigation, and professional liability defense.  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