Paul notes From "premises liability update", file E-JTB.pdf >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> A premises-liability action is a negligence claim. See, Salazar v. Crown Enterprises, Inc., 328 Ill. App. 3d 735, 740, 767 N.E.2d 366, 262 Ill. Dec. 906 (1st Dist. 2002). The essential elements of a cause of action based on common-law negligence are the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. Ward v. Kmart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990). Restatement (Second) of Torts § 314A, at 118 (1965). states that “[t]he duty to protect the other against unreasonable risk of harm extends to risks arising out of the actor's own conduct, or the condition of his land or chattels. It extends also to risks arising from * * * the acts of third persons, whether they be innocent, negligent, intentional, or even criminal.” Restatement (Second) of Torts § 314A, Comment d, at 119 (1965). reasonably foreseeable Under the Premises Liability Act, “the owner or lessee of premises owes a duty of ‘reasonable care under the circumstances' to those lawfully on the premises.” Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43, 768 N.E.2d 46, 51, 263 Ill. Dec. 286 (1st Dist. 2002), quoting 740 ILCS 130/2 (West 2000). In a situation where a plaintiff alleges that an injury was caused by a condition on the defendant's property, and the plaintiff was an invitee on the property, whether the injury is reasonably foreseeable is determined pursuant to section 343A of the Restatement (Second) of Torts. Section 343 of the Restatement provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343 (1965). An exception to this general rule, known as the “open and obvious danger rule,” is set forth in section 343A of the Restatement. It provides: 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. Restatement (Second) of Torts § 343A(1). 2 exceptions to the open and obvious danger rule: distraction exception and the deliberate encounter exception. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Under the Premises Liability Act, the duty owed by owners or occupiers of land to invitees or licensees is one of “reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” 740 ILCS 130/2. Although an owner or occupier of land does not insure the safety of such a person, he or she may become liable to invitees and licensees because of a condition on his or her land if he or she: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger. .......................................................... from file C-HER It is well settled that a possessor of land can be liable to an invitee under certain circumstances. The Restatement (Second) of Torts provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against danger. Restatement (Second) of Torts § 343 (1965) The Exception – Open and Obvious Doctrine The Exceptions to the Exception – Distraction Doctrine and Deliberate Encounter Doctrine To state a cause of action for negligence, a plaintiff must plead: 1) the existence of a duty owed to the plaintiff by the defendant; 2) a breach of that duty; 3) an injury proximately caused by the breach; and 4) damages. Section 318 of the Restatement provides that if the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and, (b) knows or should know of the necessity and opportunity for exercising such control." Restatement (Second) of Torts § 318 (1965). Possibility to Impose Liability on a Possessor of Land by Negligence Claim Rather Than Through Premises Liability Plaintiff asserted that the hospital was liable under a general negligence theory for placing a mat down that was prone to buckling on the floor in front of the elevators rather than under a premises liability theory. Under the general negligence theory, all plaintiff would need to prove is that defendant negligently created the dangerous condition on its premises. Therefore, plaintiff would be able to avoid the notice requirement. (No one disputed the hospital did not have actual or constructive notice of the fold in the mat.) Plaintiff would only need to prove the existence of a duty on the hospital's part, breach of the duty, and that the breach proximately caused the injuries. III. CONCLUSION The cases decided in 2011 and 2012 continue to apply the rules previously established by the Restatement (Second) of Torts which have been adopted by the courts. The cases continue to be fact specific and the application of the exceptions turn on the testimony and evidence presented by the parties and their experts. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Duty to warn According to the Illinois Code of Civil Procedure, § 735, "fault" refers to: "…any act or omission that is negligent, willful and wanton, or reckless…and is a proximate cause of death, bodily injury to person, or physical damage to property for which recovery is sought." >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> from file ICLDR-ISSUE-4.pdf Slip & Fall In General Illinois has adopted the rules set forth in Sections 343 and 343A of the Restatement (Second) of Torts regarding the duty of possessors of land to their invitees. Joyce v. Mastri, 861 N.E.2d 1102, 1117 (Ill. App. Ct. 1st Dist. 2007). Section 343 provides that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger. Joyce, 861 N.E.2d at 1117; Restatement (Second) To state a cause of action for negligence in a premises liability case, a plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, that the defendant breached the duty, and that an injury was proximately caused by the breach. Prostran v. City of Chicago, 811 N.E.2d 364, 368 (Ill. App. Ct. 1st Dist. 2004). Whether a duty exists is a question of law. Id. at 85. The factors that must be considered in determining whether a duty exists are: (1) the foreseeability that defendant’s conduct will result in injury to another; (2) the likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon defendant. Sandoval v. City of Chicago, 830 N.E.2d 722, 726 (Ill. App. Ct. 1st Dist. 2005). of Torts (1965). Illinois law holds that persons or entities that own or control land are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious. Sandoval, 830 N.E.2d at 726. However, there are two exceptions to the open and obvious rule: the distraction exception and the deliberate encounter exception. Prostran,811 N.E.2d at 370. Regarding the distraction exception to the open and obvious rule, a property owner will be found to owe a duty of care if it is reasonably foreseeable that the plaintiff›s attention might be distracted so that she would not discover the obvious condition. Id. Primarily, in those instances where courts have applied the distraction exception to impose a duty upon a landowner, it is clear that the landowner created, contributed to, or was responsible in some way for the distraction which diverted the plaintiff’s attention from the open and obvious condition and, thus, was charged with reasonable foreseeability that an injury might occur. Sandoval, 830 N.E.2d at 730. The defendant is not required to anticipate the specific plaintiff›s own negligence or make his premises injury-proof. Id. at 728. Under the deliberate encounter exception to the open and obvious rule, a duty is imposed when a possessor of land has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. Prostran, 811 N.E.2d at 370. The exception has most often been applied in cases involving some economic compulsion, as where workers are compelled to encounter dangerous conditions as part of their employment obligation. Id. at 89. Assault Ordinarily, a party owes no duty of care to protect another from the harmful or criminal acts of third persons. Aidroos v. Vance Uniformed Prot. Servs., 897 N.E.2d 402, 407 (Ill. App. Ct. 1st Dist. 2008). There are, however, four exceptions to this rule: (1) when the parties are in a special relationship - i.e., common carrier/passenger, innkeeper/guest, business invitor/invitee, or voluntarily custodian/protectee - and the harm is foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3) when a principal fails to warn his agent of an unreasonable risk of harm involved in the agency; and (4) when any party voluntarily or contractually assumes a duty to protect another from the harmful acts of a third party. Id. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> from file: "legal issues and prperty owners liability" The Question of Liability The core issue at hand is the question of liability. There may be no denying you are injured, but is someone liable for your injury? Many people assume if they get hurt while on another person’s property due to no fault of their own, then that someone is liable. However, this is not often the case. In fact, only 1 out of 10 cases have good liability. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> from file: "premises liability and the open-and-obvious..." The court began its analysis (as it always does) by noting that whether a duty exists depends upon "whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff," an analysis that is based on four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury and (4) the consequences of placing that burden on the defendant. Simpkins v. CSX Transportation Inc., 2012 IL 110662, ¶ 18; LaFever v. Kemlite Co., 185 Ill.2d 380, 389 (1998). The existence of an open and obvious danger is not a per se bar to the finding of a legal duty on the part of a defendant; "[i]n assessing whether a duty is owed, the court must still apply traditional duty analysis to the particular facts of the case." Id. Accord Sollami v. Eaton, 201 Ill.2d 1, 17 (2002). Application of the open-and-obvious rule affects the first two factors of the duty analysis: the foreseeability of injury and the likelihood of injury. Where the condition is open and obvious, the foreseeability of harm and the likelihood of injury will be slight, thus weighing against the imposition of a duty. But where an exception to the open-and-obvious rule applies, the outcome of the duty analysis with respect the first two factors is "reversed." The court found the distraction exception did not apply because the plaintiff had "failed to identify any circumstance, much less a circumstance that was reasonably foreseeable by the city, which required her to divert her attention from the open and obvious sidewalk defect, or otherwise prevented her from avoiding the sidewalk defect." According to the court, "[t]o the extent that looking elsewhere could, itself, be deemed a distraction, then it is, at most, a self-made distraction." But allowing a plaintiff to recover for self-made distractions would be contrary to "[t]he 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." However, determining that the distracted exception did not apply "does not end the inquiry regarding duty in a negligence case." Bruns, 2014 IL 116998, ¶¶ 35, quoting Sollami, 201 Ill.2d at 17. Under Illinois law, the four factors noted above (i.e., (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury and (4) the consequences of placing that burden on the defendant) must still be analyzed. Id. The court found the first two factors weighed against finding the existence of a duty because a defendant is ordinarily not required to foresee injury from a dangerous condition that is open and obvious and because it is assumed that persons encountering the potentially dangerous condition of the land will appreciate and avoid the risks, making the likelihood of injury slight. As to the third and fourth factors, the court found that the burden on the city of repairing this particular stretch of sidewalk, or otherwise protecting pedestrians from the sidewalk defect, was not contained in the record. But even if the burden was not great, the consequences of imposing that burden on the city would go well beyond the risk of injury posed by that sidewalk defect. "The city has miles of sidewalk to maintain" and "[t]he imposition of this burden is not justified given the open and obvious nature of the risk involved." Accordingly, the court found city had no duty to protect the plaintiff from the open-and-obvious sidewalk defect. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> from file: "premises liability - how far does the duty...." Premises liability is generally defined as “[a] landowner’s or landholder’s tort liability for conditions or activities on the premises.” Black’s Law Dictionary (9th ed. 2009). The specific legal standards for premises liability vary widely from state to state, but in general, most states have adopted some form of the Restatement Second of Torts in terms of laying out the overall structure for a premises liability claim, even in asbestos litigation. Id.; Kristin Donnelly-Miller and Ryan Johanningsmeier , Premises Liability Case Law Review: Relevant Restatement Sections, 18-22 Mealey’s Litig. Rep. Asb. 24 (2003). The Restatement defines an invitee as: (1) An invitee is either a public invitee or a business visitor. (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Restatement (Second) of Torts §332 (1965). In terms of his or her own actions and behavior, a premises owner “is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.” Restatement (Second) of Torts §341A (1965). Furthermore, when it comes to dangers that may be hidden or are intrinsic to the premises itself: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts §343 (1965). Likewise, the premises owner “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.” Restatement (Second) of Torts §343A (1965). >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> from file: "property owners may be held responsible..." Generally, in order to hold a property owner liable, a plaintiff must show that a condition presented a risk of harm, the owner knew or should have known about the condition and its risk, the owner should have expected that people on the premises would fail to recognize the danger or protect themselves, the owner was negligent in some way, the plaintiff was injured, and the injury was caused by the property’s condition. As a result, landowners may have a duty to take measures to protect people who come on the property or to warn them of risks. Sometimes a risk is so obvious that an owner does not need to warn people about it, but it depends on the specific situation. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> from file: "responsible parties in premises liability..." Under the Premises Liability Act, the owner or occupier has to owe you a duty of reasonable care before the owner or occupier becomes liable for your injuries. In general, that means you were invited to the premises as a guest, were there doing business, or it was a place open to the public. It also means that the defect in the premises was something the owner or occupier knew about or should have known about and either failed to correct it or warn you about it. However, the owner or occupier may have a defense against your claim when: You knew about the defect before you were injured The defect was open and obvious and you should have noticed it and taken care to avoid it The owner or occupier didn’t know about the defect and couldn’t have been expected to know You caused the defect through your misuse of the premises >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> from file: "what is premises liability in illinois" To successfully pursue a legal claim against a property owner for a personal injury, you must be able to prove that the property owner was negligent. As we have discussed in a previous post, but the fact remains that, to effectively establish a premises liability claim, you must be able to prove the following: That the property owner owed you a legal duty. That the property owner breached that duty. That the property owner’s breach of that duty led to or contributed to the injuries you suffered on the property in question. That you suffered damages due to the property owner’s breach of their legal duty to you, a visitor on their property. The legal duty in this case arises out of the property owner’s possession of and control over the property. To prove that the property owner was liable for an injury you suffered, you would have to prove that the property owner did not exercise “reasonable care” in keeping visitors safe.