ILLINOIS APPELLATE COURT CLARIFIES "OPEN AND OBVIOUS" IN PARKING GARAGE CASE - Mark P. Loftus

Just noticed an interesting premises liability decisision handed down in November by the Illinois Appellate Court, Alqadhi v. Standard Parking. The plaintiff tripped and fell over raised concrete while leaving a parking garage. She suffered injuries to her knees. She alleged that the defendants failed to mark a 3/4 inch rise in concrete leading to a wheelchair-accessible ramp. Defendants moved to have the case tossed, arguing in part that the condition was open and obvious. In responding to the motion, plaintiff submitted the testimony of an expert who testified that the due to a failure to paint the area yellow, the ramp appeared flat. Additionally, the plaintiff testified the lighting was poor. The trial court however, agreed with the defense and tossed the case, noting the the raised area was open and obvious. The plainiff ultimately appealed.
The Appellate Court, in reviewing the “open and obvious doctrine” noted that where there is no dispute about the physical nature of the condition, the issue of whether it is open and obvious is one for the court. But, where a dispute exists about the physical nature of the defect, such as visibility, then a factual dispute exists and should be resolved by a jury.
The Appellate Court reversed, noting that the plaintiff testified the lighting was poor and that due to the absence of any marking the change in elevation appeared flat. Additionally, the Appellate Court noted the expert’s testimony that the lack of paint “disguised” the change in elevation. Consequently, the court found that there was a dispute abou the physical nature of the condition.
Additionally, the Court didn’t buy the defense argument that the defect was “de minimus” or too tiny to be actionable. The Appellate Court noted that even a minor defect may be actionable where there are aggravating factors, such as heavy traffic or distractions.