Sometimes there’s a decision in a trip and fall case that makes you wonder why the court just didn’t dispense with the legal gymnastics and announce a rule of strict liability. Take the case of Norma Waters.
On Aug. 22, 2005, 72-year-old Norma tripped over the metal base of a construction barrier that had been set up at the intersection of Milwaukee and Higgins Avenues in Chicago. Norma broke her wrist in the fall.
According to Norma, the metal base that tripped her up was protruding into the crosswalk. Norma claims that she had succeeded in avoiding two of these metal legs on her passage through the crosswalk, but the third one tripped her up because she was startled by the sound of a jackhammer as she tried to step over it.
Norma filed a personal injury suit against the city of Chicago, but a state trial court came to the not so unreasonable conclusion that the danger posed by the construction barrier was open and obvious.
With her lawsuit dismissed on summary judgment, Norma sought and found some sympathetic judges in the Illinois Appellate Division.
Last month, the appeals court revived Norma’s lawsuit, honing in on her allegation that she was distracted by the sound of the jackhammer. You see, Illinois law recognizes an exception to the open and obvious doctrine which imposes a duty of care when the property owner should reasonably anticipate that an invitee will be distracted from recognizing or avoiding the patent hazard.
The appeals court decided that the distraction exception applied to save Norma’s lawsuit. In concluding that jury issues existed in the case, the court explained:
[D]espite the obviousness of the barricade and its base, [Norma] became distracted upon hearing the loud noise from the jackhammer. … It is reasonable to expect that a defendant who places a barricade over a sidewalk and places a portion of their bases in an area of ingress and egress on a public sidewalk without signs warning people to avoid walking in the area could foresee that people could reasonably become injured and would likely become injured if they used the walkway. … For these reasons, we cannot say, as a matter of law, that [the city] should not have reasonably anticipated the distraction and should not have foreseen the injury to [Norma].
According to the court, what the city could have done was barricade the entire walkway so that no one could use it until the construction was complete. That may be. In these trip and fall cases, there will always be that one more thing that the property owner could have done to prevent the injury.
On the other hand, all too frequently there’s a handy excuse for the plaintiff’s failure to avoid everyday hazards that most of us manage to avoid without a second thought.
– Pat Murphy