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What is the "open and obvious" defense in premises liability?

The general rule concerning premises liability in Illinois is that the owner or occupier of property has a duty to protect people on the property from reasonably foreseeable harm. This duty of care is subject to certain limitations, one of which is known as the "open and obvious" defense. This defense holds that if the danger on the property is known to or obvious to people who enter the property, then the owner or occupier of the land does not owe them a duty of care with regard to that particular condition.

What may constitute an open and obvious dangerous condition on the property is a question of fact, but the thrust of the defense is that the property owner or occupier cannot be in a position to foresee that others on the property would be injured by such an obvious danger. Thus, for example, if a tree trimming contractor sees a stub pole underneath him and falls onto that stub pole, injuring himself, the open and obvious defense may serve as a defense to the property holder.

The open and obvious defense is itself subject to two exceptions: "distraction" and "deliberate encounter." Essentially, if the plaintiff in a premises liability action who might otherwise be subject to the open and obvious defense can show that he was distracted at the time of injury, and that such distraction was foreseeable to the defendant, this may overcome the open and obvious defense.

The deliberate encounter exception works where someone on the property chooses to encounter an open and obvious risk of harm because the benefit of doing so outweighs the risk, and this mental calculation is foreseeable to the owner or occupier of the property.

Although the open and obvious defense to premises liability and its two possible exceptions are questions of fact and foresee ability for a jury, it can still be helpful for anyone with a possible premises liability claim to discuss the underlying facts of the injury event with a personal injury attorney whose practice includes premises liability case work to analyze whether the defense or the exceptions to it might apply.

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