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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

McKenna Law Update – March 2012


Sensory Enough to Summary Judgment in Slip and Fall Case

The First District Appellate Court in Illinois made an interesting distinction in a slip and fall matter in its recent decision in Caburnay v. Norwegian American Hospital, 2011 IL App (1st) 101740. In that matter, Dr. Fernando Caburnay entered the Norwegian Hospital lobby and proceeded down the corridor to an elevator bank. At the time, Norwegian had placed a large rubber and fabric mat in front of the elevators to protect the floors and prevent slipping. As Caburnay approached the elevator, he walked onto the mat, pushed the elevator button and stepped back. As he stepped back, Caburnay fell backwards and the back of his neck struck a couch near the elevator. Caburnay fractured his cervical spine, instantly rendering him a quadriplegic. At the depositions given in the matter, Caburnay testified that he never actually saw a flap or ripple in the mat in question. However, he did testify that he felt the sole of his shoe get caught in a “fold from the area rug.” The other witnesses deposed in the matter had not noticed any irregularities in the mat. Based on the above testimony, Norwegian filed a motion for summary judgment with the trial court. Norwegian argued that Caburnay’s testimony was tantamount to an assumption that a fold in the mat caused his fall, as he had not actually observed any irregularities in it. The trial court granted Norwegian’s motion for summary judgment. On appeal, Caburnay contended that the trial court erred in granting Norwegian’s motion because his testimony as to his sensory perception of a fold in the mat was enough to create a question of fact for the jury. The Appellate Court reasoned that Caburnay’s testimony that he felt his foot catch in the mat was not describing an emotion, but a sensory perception, in the same way a blind person would describe something he was able to touch but not see. Caburnay described a tangible, physical sensation, not just an assumption as to what caused his fall. This testimony of sensory perception distinguished this matter from the cases cited by Norwegian where the plaintiffs slipped and fell on floors but were unable to see or feel what had caused their fall (see Barker v. Eagle Food Centers, 261 Ill.App.3d 1068 (1994); Brett v. F.W. Woolworth Co., 8 Ill.App.3d 334 (1972)). The Appellate Court determined that Caburnay’s tactile perception of a fold in the mat without accompanying visual perception was enough to create a question of fact which could allow a jury to conclude that a fold in the mat caused Caburnay’s fall. For this reason, the trial court’s granting of summary judgment on this issue was reversed. For further information, contact Paul Steinhofer at 312.558.3985 or psteinhofer@

Update on Open and Obvious Danger Defense for Water Activities

The Second District Appellate Court recently addressed the application of the open and obvious defense to a diving injury on the Fox Chain O’ Lakes. In Bezanis v. Fox Waterway Agency, 2012 WL 904647 (2d Dist. 2012), a teenager dove headfirst off an anchored boat in the middle of the Petite Lake, about 400 feet from shore. The water was only three feet deep in that area. The teen struck his head on the bottom of the lake and is now quadriplegic. The teen sued the waterway agency (FWA) and the county sheriff alleging the defendants were responsible for the safety of people on the lake and breached their duty of care by failing to place buoys, markers, or other flotation devices on the water to warn against diving into the shallow parts of the lake, including into those areas far from shore. FWA and the Sheriff filed motions to dismiss, arguing that the teen had failed to allege facts to establish that defendants owed the teen a duty to warn. In particular, the defendants argued that the teen should have known that diving into water of unknown depth presents an open and obvious risk of injury. Judge Stark in Lake County dismissed the complaint with prejudice, and the teen appealed. The Second District Appellate Court held that (1) the danger of diving headfirst off of an anchored boat into a lake, without first checking the lake's depth, was an open- and-obvious danger, and (2) the agency and sheriff did not have a duty to warn a swimmer of the danger of diving into a lake. In reaching its decision, the Appellate Court applied traditional principals of duty. To prevail in an action for negligence, the plaintiff must prove that the defendant owed a duty, that the defendant breached that duty, and that the defendant's breach was the proximate cause of injury to the plaintiff. The four factors relevant to whether a duty exists are (1) the reasonable foreseeability of the plaintiff's injury, (2) the reasonable likelihood of the injury, (3) the magnitude of the defendant's burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Defendants contended that diving into water of unknown depth presented an “open and obvious” condition, negating any alleged duty to warn plaintiff of the danger of diving into shallow water. A condition is open and obvious where a reasonable person in the plaintiff's position, exercising ordinary perception, intelligence, and judgment, would recognize both the condition and the risk involved. Normally, the question of whether a condition is open and obvious is a legal one for the court. In cases involving common open and obvious conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such conditions. While a body of water, whether it is natural or artificial, generally is deemed to present an open and obvious danger that is considered to be apparent not only to experienced swimmers, but even to very young children, the existence of an open and obvious danger is not a per se bar to finding that a landowner has a duty to exercise reasonable care. The open-and-obvious doctrine implicates the first two factors of the traditional duty analysis: likelihood and foreseeability of injury. First, the law generally considers the likelihood of injury slight when the condition at issue is open and obvious, because it is assumed that persons encountering the condition will appreciate and avoid the risks. The appellate court concluded that, because the lake presented open and obvious risks to patrons, including those who dove from boats, the likelihood-of-harm factor in the duty analysis does not weigh in favor of imposing a duty to warn. Second, while injuries from drowning and diving might be anticipated wherever there are lakes, the legal concept of reasonable foreseeability of injury arising from open and obvious conditions takes into account that even young, unsophisticated, or immature people are generally assumed to appreciate the risks associated with such conditions and therefore exercise care for their own safety. Moreover, simple foreseeability of injury is not dispositive on the issue of whether the law imposes a duty in negligence. Thus, the Appellate Court concluded that the second factor weighed against imposing a duty upon defendants to warn against diving. The last two factors, the magnitude of the burden of imposing the duty and the consequences of such burden, also weighed against imposing a duty on defendants. The Appellate Court reasoned that the social utility of the lake area is significant and the desirability of keeping them open to the public is an important concern in balancing the factors used in the analysis of duty. To prevent diving into shallow waters far from shore, defendants would be required to measure the water level and determine the topography of the lakes' bottoms, post floating warnings and cordon off those areas of the lakes to show where it is unsafe to dive, and reassess the water levels and lake bottoms as necessary, depending on their fluctuations. Requiring defendants to undertake such steps, it believed, would create a practical and financial burden of considerable magnitude. Moreover, the consequences of placing such burden on defendants might include the curtailment of the public's access to the Chain O' Lakes to the detriment of the public at large. For further information, contact Kristin Tauras at 312.558.3923 or ktauras@  
Categories Tort Law Update Bulletin

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