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Fact Investigation Issues Checklist for Premises Liability Claims

By Jon A. Stump

Quinn Johnston attorneys have recently obtained summary judgments in a number of cases involving premises liability. It is our hope that this article will assist you in the fact investigation stage of premises liability claims to maximize the liability defenses available to your insureds. The following is a listing of several defenses that have been successfully argued by our attorneys in obtaining summary judgments for their clients.

Open and Obvious Defense

The open and obvious doctrine has long been recognized as a defense to the duty requirement in a premises liability case. The Illinois Supreme Court reiterated this doctrine by citing to the Restatement (Second) of Torts which describes it as follows:

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 cited by the Illinois Supreme Court in Sollami v. Eaton, 201 Ill.2d 1, 772 N.E.2d 215, 265 Ill.Dec. 177 (2002).

 

The Illinois Supreme Court used this doctrine to bar recovery in a premises liability action brought by a 15-year old girl who was injured while rocket jumping on a trampoline. The court held that the dangers of rocket jumping on a trampoline were open and obvious to a reasonable 15-year old girl and barred her recovery. Quinn Johnston, on behalf of its client, cited the decision in Sollami in its motion for summary judgment in a case where a 43-year old woman was injured in a sporting goods store while trying out a piece of exercise equipment known as an inversion machine and injuring herself when she turned herself over. In investigating these types of claims, it is important to get every detail about the condition that the plaintiff or claimant is claiming caused his or her injury. 

Lack of Notice to the Owner Defense

Under Illinois law, a plaintiff in a premises liability action alleging that a condition on the premises caused his or her injuries is required to prove that the defendant knew or in the exercise of ordinary care should have known of both the condition and the risk involved. In the Illinois Appellate Court case of Tomsak v. Plantersphere, Inc., 315 Ill.App.3rd 1033, 735 N.E.2d 622, 249 Ill.Dec.58 (1st Dist. 2000), a patron of a roller skating rink filed suit against the operator for personal injuries allegedly sustained as a result of falling on a puddle of water on the surface of the roller rink. In that case the trial court granted Defendant’s motion for summary judgment. Plaintiff appealed. The Appellate Court affirmed the decision on the basis that the plaintiff herself did not know and could not testify as to how long the water had been on the floor and there was no evidence that anyone else knew how long the puddle of water was present.

Quinn Johnston, on behalf of its client, successfully moved for summary judgment in Tazewell County circuit court in a case where a plaintiff at a restaurant slipped on a puddle of water at the end of a deli counter. In that case, the plaintiff was unable to testify as to how long the puddle was present or give any evidence as to the puddle of water which would provide the restaurant owner with constructive notice as to how long the puddle had been present. Therefore, it is important in the investigation of these cases to determine whether the claimant has any knowledge as to the length of time that the offending condition was present or whether that claimant has any information that would give constructive notice to the landowner as to how long a condition was present.


Lease Agreements

In the tenant and landlord context, often times a tenant or a tenant’s invited guest will file suit for personal injuries claiming that a condition on the leased property caused his or her injury. Under Illinois law, where a defective condition exists on premises leased to a tenant and under the tenant’s control, a landlord is not liable for injuries caused by the condition. McCoy v. Chicago Housing Authority, 331 Ill.App.3d 305, 309, 775 N.E.2d 168, 171, 266 Ill.Dec. 606 (1st Dist. 2002). In McCoy, the court stated that “the lessee acquires an estate in the land, and becomes for the time being both owner and occupier, subject to all the responsibilities of one in possession, to those who enter upon the land and those outside of the boundaries”. Id. This establishes the general rule that a landlord is not liable for physical injuries caused by defective conditions that occur on leased premises.

Quinn Johnston, on behalf of its client, used this defense to obtain summary judgment in a case where a visitor to a tenant slipped and fell on an ice puddle created by a defective downspout on the porch of a rented home. Plaintiff sued the landlord. The trial court ruled that the defective downspout was the responsibility of the tenant and not the landlord under the lease agreement which leased the entire house to the tenant. Thus, in investigating claims arising out of injuries that occur on leased premises, it is always a good idea to obtain the relevant lease agreements as part of your investigation of the claim. These can be very useful in defending landlords and other lessors of premises.


Comparative Fault

Although comparative fault defenses are often fact based such that summary judgment is difficult to obtain, it is still important to obtain information in the investigation stage of these claims to support potential liability defenses of comparative fault. Comparative fault in premises liability cases usually involves the claimant failing to recognize a condition due to inattention or otherwise failing to take appropriate action to avoid injury to themselves. In the premises liability context, it is important to ascertain from the claimant when they first noticed the condition, details surrounding the condition and what action, if any, they took to protect themselves against this condition.


Conclusion

Although there are a number of other defenses to premises liability actions, the above-listed defenses seem to be the most common in the claims that make their way to a lawsuit. An early investigation of the facts surrounding these issues will assist both the insurer and defense counsel is a vigorous defense of these claims.

Originally published in the Summer 2010 edition of Quinn Quarterly.