The ‘Open and Obvious’ Rule, the ‘Forgetfulness or Distraction’ Exception, and Winning Your Illinois Slip-and-Fall Case

In slip-and-fall (and trip-and-fall) cases, there are several techniques the defense may deploy to attempt to defeat your claim and avoid paying compensation to you. One of the more common tactics is to assert that the defect that caused your fall was “open and obvious.” This argument can be powerful because the law says that the owners or controllers of a property have no legal obligation to provide protection against, or a warning about, open and obvious risks. In order to make sure you have your opportunity for your day in court (and to obtain the compensation you deserve), be sure that you are prepared by having experienced Illinois premises liability counsel representing you in your case.

One man who had to battle against an “open and obvious” argument was Steven, who was injured while attempting to enter the condo he shared with his girlfriend, Karen. According to the injured man’s lawsuit, he slipped and fell on the “stoop and stairs” situated in front of the condo’s entrance. The fall caused Steven to suffer very serious injuries to his left knee and left ankle, which caused him to have to undergo multiple surgeries and led him to sue.

According to Steven, the problem arose after the property manager hired a firm to apply an epoxy substance to the stoop and stair area. Allegedly, after the epoxy job was completed, the stoop and stair area was very slippery, especially when wet. Karen allegedly complained to the property manager at least 3-4 times, starting in 2008. (Steven’s accident took place in October 2009.)

The defendants in Steven’s case advanced an argument that they could not be liable because the hazard was open and obvious. They asserted that the slipperiness of the stoop area was open and obvious and well-known to the man. The trial court ruled against Steven, concluding that he knew about the problem and was concerned about it, which was sufficient proof to show that the hazard was open and obvious.

The Appellate Court disagreed and reversed that ruling, which meant that Steven received a renewed opportunity to seek compensation. The key to Steven’s success in the appeals court was the exceptions that Illinois law recognizes when it comes to the “open and obvious” doctrine. The law acknowledges two exceptions. The trial court only analyzed one. The exception that the trial court missed was the ”forgetfulness or distraction” exception. This allows an injured person to pursue his case, even if the hazard was open and obvious, if a reasonable person might momentarily forget or become distracted and be injured by the dangerous condition.

At the time of the accident, it was raining heavily enough that Steven acknowledged wanting to get inside quickly. This, according to the appeals court, was enough to make a reasonable person forget about the slippery stoop, which raised the possibility that the forgetfulness or distraction exception applied to Steven’s situation.

If you’ve been hurt in a slip-and-fall accident, make sure you have the representation you need. The diligent Chicago injury attorneys at Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca have been helping injured people for many years pursue the compensation they deserve. To set up a free case evaluation, contact us at 800-444-1525 or through our website.

More Blog Posts:

Chicago Student Paralyzed by Falling Airport Shelter Receives $148M Judgment, Chicago Injury Attorneys Blog, Jan. 3, 2018

4 precautions to prevent slip-and-falls during winter, Chicago Injury Attorneys Blog, Feb. 8, 2015