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Pothole Found to Be Open and Obvious Condition as Matter of Law

By James A. Borland

Appellate Court Affirms Continued Viability of Open and Obvious Doctrine

In Garcia v. Young, the appellate court affirmed the continued viability of the open and obvious doctrine in Illinois.

In Garcia, a husband and wife filed suit alleging injury when the husband stepped in a pothole located on a private road. The pothole was approximately two feet in diameter and eight inches deep. Although not noted in the complaint, the husband’s injury allegedly occurred when he entered the road to attempt to save his stepson from an approaching vehicle. Defendant moved for summary judgment, on the basis that the pothole was open and obvious. The trial court granted the motion and plaintiff appealed.

On appeal, plaintiffs conceded that the pothole was an “open and obvious” condition of the property. The court analyzed whether the “deliberate encounter” exception or the “distraction” exception applied. The court found that the husband did not deliberately encounter the pothole. In fact, the husband specifically stated that although he had noticed that the roadway consisted of a lot of areas where there was disrepair, he had not specifically noticed this particular pothole. The court found that general knowledge of the area surrounding the condition at issue was not relevant in an argument based upon the “deliberate encounter” exception. Accordingly, this exception did not apply.

The court also found that the “distraction” exception did not apply. Specifically, the court reasoned that the defendant was not responsible for, contributed to or in any way created the condition which allegedly distracted the husband – the child entering the roadway. As such, this exception did not apply, either, and defendant had no duty to either warn or protect plaintiffs from the condition.

No Cause of Action Based on Section 318 of the Restatement (Second) of Torts

A recent Illinois appellate court decision, Tilschner v. Spangler and Ruppel, declined to find a duty based on Section 318 of the Restatement (Second) of Torts.

In Tilschner, plaintiff was injured during a party at the home of defendant Spangler when defendant Ruppel ignited fireworks. Plaintiff filed suit against both defendants. Count II of plaintiff’s third amended complaint alleged negligence against defendant Spangler pursuant to Section 318 of the Restatement (Second) of Torts, which states:

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.

Defendant Spangler moved to dismiss Count II, arguing that Section 318 had not been adopted by the Illinois Supreme Court and, thus, owed no duty to plaintiff. The motion was granted and Count II was dismissed, with prejudice. Plaintiff’s motion to reconsider, application for leave to appeal and motion for leave to file a fourth amended complaint were denied. Plaintiff then voluntarily dismissed Count I, which enabled her to appeal the trial court’s ruling.

On appeal, plaintiff argued that Section 318 had “unquestionably” been adopted in Illinois. However, the court disagreed with plaintiff’s conclusion. The Court noted that a restatement section is not binding on Illinois courts unless it has been specifically adopted by the Illinois Supreme Court. Section 318, the court concluded, has never been specifically adopted by the Illinois Supreme Court. As such, defendant Spangler owed no duty to plaintiff and the trial court properly dismissed Count II, with prejudice.

Common Fund Doctrine Does Not Apply to Liens under the Healthcare Services Lien Act.

The always interesting common fund doctrine received additional attention by the Illinois Supreme Court in Wendling v. Southern Illinois Hospital Services, et al.

In Wendling, hospitals that had treated various plaintiffs asserted liens against hospital proceeds from their lawsuits. These liens were presented pursuant to the Healthcare Services Lien Act. The circuit court found that the hospitals were responsible for their proportionate share of the plaintiffs’ attorney fees and this decision was affirmed by the appellate court.

The Court began its decision by setting forth the language of the Healthcare Services Lien Act. It further noted that the statute was completely silent as to whether a lien holder under the Act was responsible for attorney fees.

The Court reasoned that Illinois courts have never applied the common fund doctrine to creditor-debtor relationships (such as in the present case). It also referenced a prior Supreme Court decision finding that the common fund doctrine was not applicable to statutory liens held by hospitals, refusing to overturn that decision.

Further, the Court found that the lower courts had incorrectly interpreted a more recent Supreme Court case, Bishop v. Burgard. The lower courts had found that the Bishop case actually expanded the application of the common fund doctrine to a hospital lien holder; however, the Supreme Court distinguished Bishop on a factual basis. Specifically, the Supreme Court found:

In contrast to the ERISA plan in Bishop, the hospitals were not unjustly enriched because their claims were not contingent on the plaintiffs’ rights against a third party or the creation of a fund.

The Court found that any benefit to the hospital was merely an incidental benefit which would not invoke the application of the common fund doctrine. This decision merits review anytime a situation arises involving a hospital lien and a claim for reimbursement under the common fund doctrine.

Originally published in the Summer 2011 edition of Quinn Quarterly.