Litigation

ILLINOIS APPELLATE COURT EXPLAINS THE "DELIBERATE ENCOUNTER" EXCEPTION

By Mark P. Loftus, Esq.

Several months ago, the First District of the Illinois Appellate Court handed down an well-written opinion involving an injury resulting from wet asphalt. The case, Morrissey v. Arlington Park Racecourse, involved the injuries a young man suffered when he was injured while exercising some horses. The key facts are pretty straightforward - the Arlington racetrack park contains two tracks. The injury took place at a smaller track where horses are trained. The smaller track is a dirt track with two exits, an east exit and a west exit. The west exit layout makes it very time-consuming for riders to use. The east exit however, is close to the track AND close to the stables. Not surprisingly, the east exit was more attractive to riders on a tight schedule. The path from the track to the east exit is asphalt. Additionally, as horses are constantly being washed nearby, the path leading to the east exit is is often wet and slippery. The plaintiff, Quentin Morrissey, was injured when his horse stumbled and fell upon him as they were moving on the path to the east exit. He sued the racetrack, claiming the east exit path was unsafe due to the presence of water.

After discovery was completed, the racetrack moved to have the suit tossed. The defendant argued in part that the allegedly dangerous condition[the constant presence of water] was open and obvious and the plaintiff was well aware of it. The trial court granted the motion. Plaintiff appealed.

On appeal, the plaintiff conceded the water was indeed an open and obvious condition. But the plaintiff asserted that the "deliberate encounter" exception applied, allowing him to recover. The "deliberate encounter" exception to the open and obvious rule states that the landowner still has a duty to those lawfully on his property when the owner or possessor reasonably expects the guest will proceed to encounter a danger because the advantages of doing so outweigh the risk. The exception is taken from Section 343A of the Restatement[Second] of Torts. The key is whether the landowner can foresee his guests encountering the condition[despite it being obvious] even if alternatives are available. The focus is NOT on the actions of the person injured, but whether the landowner should have anticipated the actions of his guest.

The Appellate Court concluded that the defendant was aware that riders regularly used the east exit because of its proximity to the training track. The trial court's decision was overruled.

Full post as published by Illinois Lawyer Blog on January 26, 2011 (boomark / email).