Bucheleres v. Chicago Park District

JUSTICE HARRISON, dissenting:

As their states have enacted comparative fault legislation, courts in a growing number of jurisdictions have concluded that the common law doctrine of "open and obvious danger” can no longer be used to avoid the duty of care a possessor of land otherwise owes its invitees. See Woolston v. Wells, 297 Or. 548 , 687 P.2d 144 (1984); O’Donnell v. City of Casper, 696 P.2d 1278 (Wyo. 1985); Harrison v. Taylor, 115 Idaho 588 , 768 P.2d 1321 (1989); Donahue v. Durfee, 780 P.2d 1275 (Utah App. 1989); Kendrick v. Ed’s Beach Service, Inc., 577 So. 2d 936 (Fla. 1991); Klopp v. Wackenhut Corporation, 113 N.M. 153 , 824 P.2d 293 (1992); Tharp v. Bunge Corp., 641 So. 2d 20 (Miss. 1994); Rockweit v. Senecal, 197 Wis. 409 , 541 N.W.2d 742 (1995). Under this line of cases, the existence of a known or obvious condition does not preclude recovery by an invitee. It is simply an element to be considered by the jury in apportioning negligence between the invitee and the possessor of the land.

Although Illinois has adopted comparative fault principles (Alvis v. Ribar, 85 Ill. 2d 1 (1981)), this court has refused to adopt the new approach. Instead, it has continued to adhere to the basic common law rule that an invitee’s voluntary encounter with a known or obvious danger will bar his recovery against the landowner absent certain extenuating circumstances. Ward v. K mart Corp., 136 Ill. 2d 132 (1990); Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430 (1990); American National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14 (1992). Today’s decision is but the latest application of this rule.

If we could begin again, I would urge a different course. Now. that we have a comparative fault system, albeit one that the legislature has modified significantly (see 735 ILCS 5/2 — 1116 (West 1994)), the open and obvious danger rule makes no more sense than the old defenses of contributory negligence and assumption of risk, which have now been jettisoned. It is a harsh and unjust principle of law yielding results that are often cruel, if not bizarre. See, e.g., Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110 (1995) (six-year-old boy who suffered permanent brain damage after falling into swimming pool held to higher standard of care than multimillion-dollar telephone company).

The majority’s attempt to distinguish the “open and obvious danger” rule from these other, now discarded, common law defenses is unpersuasive. Ultimately, its approach rests on nothing more substantial than semantics. Other states that have abandoned the rule have confronted the very same analytical hurdles and found them easy to clear.

Having said that, I see that for here and now, there is no point in contesting the matter. Wholly aside from the importance of adhering to principles of stare decisis, I believe that any reasonable challenge to the majority’s approach has been effectively foreclosed by the recent amendments to the Premises Liability Act. Pub. Act 89 — 7, eff. March 9, 1995, amending 740 ILCS 130/2 (West 1994). Under that statute, the existence of an open and obvious danger is not simply a factor to be considered in assessing the parties’ respective negligence. It has been explicitly linked to the duty of an owner or occupier of land with respect to invitees and licensees, as the majority argues it should be. Adopting the majority’s view, the legislature has now stated specifically that if a condition on the premises is open and obvious, the owner or occupier has no duty to warn or to otherwise take steps to protect such entrants from the danger.

Even though the "open and obvious danger” doctrine remains fully viable as a legal principle, I do not believe that it should operate to bar plaintiffs’ claims in these consolidated appeals. As the majority acknowledges, the existence of an open and obvious condition does not automatically mean that the owner or occupier of land owes no duty of care to its invitees or licensees. In an apparent effort to ameliorate the harshness of the doctrine, this court has declared that the scope of a defendant’s duty must still be assessed in accordance with traditional tort principles, taking into account the particular circumstances that are before the court. Ward, 136 Ill. 2d at 147-48 .

Whether a duty exists in a particular case involves consideration of whether the injury was reasonably foreseeable. That, however, is not the end of the inquiry. Because the existence of a duty turns, in large measure, on public policy factors, the court must also take into account the likelihood and severity of the injury, the burden of guarding against the injury, and the consequences of placing that burden on the defendant. Ward, 136 Ill. 2d at 151 ; Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 453 (1992). These considerations must be weighed against each other. Accordingly, a duty of reasonable care may be imposed on a defendant even though the danger of injury is remote where the gravity of the injury would be great and the burden of protecting against it slight. See St. Paul Insurance Co. v. Estate of Venute, 275 Ill. App. 3d 432, 437 (1995).

My colleagues assert that injuries of the kind sustained by the plaintiffs here were not reasonably foreseeable because Lake Michigan is a body of water, and water is included in the litany of supposedly "obvious” conditions that people are expected to protect themselves against. The problem with this approach is that it would effectively deny the existence of a duty whenever any body of water is involved. The particular circumstances of the case are rendered inconsequential, and the need for further application of the traditional duty analysis becomes moot. This is directly contrary to the teaching of Ward and its progeny.

If we look at the particular facts of the cases before us, as we must, the issue of foreseeability is considerably more difficult than the majority is willing to admit. In Bucheleres, No. 78760, the plaintiff was not new to the area around the Division Ledge 'where he broke his neck. He had been there scores of times in previous years, and had dived without incident. The area was, in fact, a popular gathering spot and was known by the Park District as a place where people dived into the lake from the seawall.

There were always risks to this diving, to be sure, but at the time of the plaintiff’s accident the risks had changed in a way no person could reasonably have anticipated. The difference had nothing to do with nature or the inherent characteristics of large bodies of water. Although Lake Michigan is subject to certain fluctuations in its water level, the culprit here was something different. The new danger arose because the Park District had dumped large amounts of sand into the lake bed, reducing the depth substantially, but did not alert potential divers that it had done so. Considering that the Park District was well aware that divers frequented this area, its actions were a formula for disaster. Serious injury was not merely foreseeable, it was inevitable.

Contrary to the majority’s suggestion, imposing a duty of reasonable care on the Park District does not mean that it would be required to insure that no diving could ever take place near the seawall. The problem arose because the District artificially altered the depth without warning, and the problem could be solved simply by providing appropriate signage and additional patrols to give potential divers the warning they need. Compared with the likelihood and severity of the injuries, such a burden is modest. For the cost of treating and rehabilitating a single paraplegic, a troop of summer lifeguards could be hired, and the seawall area could literally be covered with the necessary warnings.

Smith, No. 78790, involves a different section of the Lake Michigan shoreline than Bucheleres, and no claim has been made that the lake bed there was artificially altered. While the case for foreseeability may therefore be less compelling, it is still substantial. The plaintiff in Smith was an experienced swimmer. He had dived from this same seawall many times without incident and believed the water to be very deep.

This was not an unreasonable assumption. Lake Michigan is, after all, a massive body of water. Reaching depths of up to 925 feet, it has been described as a freshwater ocean. While even oceans have their shallow areas, the Park District had erected steel ladders next to the seawall, suggesting that it anticipated the presence of divers. In addition, lifeguards posted at the adjacent beach evidently made no effort to stop the plaintiff or others from diving on the day in question. Although the Park District contends that warning signs were posted, the signs must have been less than obvious, for the plaintiff claims that he never saw them.

Under these circumstances, I do not believe that we can say, as a matter of law, that a reasonable person would have appreciated the danger posed by this section of the shoreline and refrained from diving there. Indeed, the notion that people should have been expected to know better than to dive off the rocks is belied by the fact that people were doing it routinely and the Park District knew they were doing it.

As in Bucheleres, the burden of protecting such divers from danger is not necessarily substantial. If the Park District was unwilling to survey the known diving areas and make sure they were clear of submerged obstructions, it could at least provide warning signs that were effective and hire additional guards to help see that the signs were obeyed. The cost of such measures pales in comparison to the financial and social costs associated with spinal injuries sustained as a result of diving accidents. In Smith, as in Bucheleres, the Park District judgment-of the appellate court should therefore be affirmed.