OPEN AND OBVIOUS DECISION

The First Appellate Court recently weighed in on the always fascinating "open and obvious" doctrine recently in Sandoval v. City of Chicago. In the decision, the plaintiff was babysitting for a neighbor's son and took him out to the front of her home. At some point the child was no longer visible and plaintiff became concerned and went to look for him. While walking toward her home, her left foot became lodged in a large crater in the sidewalk that had been there for some time. The plaintiff was aware of it, and admitted she had been past it "millions of times". She also admitted nothing obstructed her vision and nothing in the area distracted her. Defendant moved for SJ, arguing that the defect was "open and obvious". The motion was granted and plaintiff appealed.

The Appellate Court decision first noted that a landowner is not required to protect entrants to the land from open and obvious conditions. There are however exceptions to the general rule. The plaintiff claimed the distraction exception was relevant in her case. With the distraction exception, the defendant does owe a duty of care for an open and obvious condition where plaintiff's attention might be diverted, so that he/she would not discover, or would forget the defect. And the Court went on to note that the distraction exception wouldn't fly. The court noted that the plaintiff was familiar with the sidewalk; was consciously walking in the area and was not distracted by any condition in the area. In addition, the Court pointed out the distraction exception truly only applies when the landowner created the distaction which diverted plaintiff's attention from the open and obvious condition. A line of cases have held that where the plaintiff's attention is diverted by his or her own acts, for which defendant has no responsibility, the exception does not apply. The Court concluded that the defendant didn't create the situation - instead, the events unfolded AFTER plaintiff had brought the child outside. The Appellate Court concluded that plaintiff's injury did not occur because of an improper distraction, but her own inattentiveness.