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September 12, 1994


Appeal from the Circuit Court of Christian County. No. 92-L-29. Honorable David W. Slater, Judge Presiding.

Petition for Leave to Appeal Allowed February 1, 1995.

Honorable Charles W. Chapman, J., Honorable Richard P. Goldenhersh, J., Specially Concurring, Honorable Gordon E. Maag, J., Specially Concurring.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

"When I was a child, I spake as a child, I understood as a child, I thought as a child * * *." 1 Corinthians 13:11.

If a babysitter left a two-year-oldtoddler alone in a bathroom whose tub was half-filled with water, and if, tragically, the child climbed into the tub and drowned, most people would sympathize with the child and the family, but they would also have a question in the back of their minds. What would that question be?

It would not be, "Why did that two-year-old child climb into the tub?," because the answer to that question is already known: two-year-olds do not appreciate the danger of even six inches of clear water in a bathtub in the family home. All people know this.

The question that is asked, "Why did the babysitter leave a two-year-old alone near a tub of water?" examines not the conduct of the child but that of the responsible person. Was there an emergency, did something on the stove boil over, did another child in the house hurt herself, did the phone ring and the sitter step out for just a second, or did the sitter just leave the child alone for no reason? And, if it is the last, then would not all people say, "That babysitter did not fulfill his or her duty."

If all people know that children do not appreciate the danger of water, and if all people would conclude that babysitters who leave children unguarded near tubs of water are derelict in their duties, then why do some courts continue to reach the opposite Conclusion: that children appreciate such dangers and that because of that appreciation on the part of the child there is no duty on the part of a defendant? This case presents another instance of the application of the open-and-obvious-danger rule.

The Van Hoosers maintain an above-ground swimming pool, which is enclosed with a picket fence. The gate to the fence is secured with a padlock. Plaintiff claims that prior to June 9, 1991, Consolidated Communications, Inc. (Consolidated), entered onto the Van Hooser property and, without consent or other lawful authority, erected a telephone utility pedestal immediately adjacent to the Van Hooser's fence.

On June 9, 1991, six-year-old Dale Beavers, Jr., was playing next door to the Van Hoosers. Dale stepped upon the utility pedestal to scale the fence and gain access to the Van Hooser's pool. Dale apparently sustained irreversible brain damage and is a total-care patient in the home of his parents.

Plaintiff alleged that Consolidated breached its duty of reasonable care by erecting the utility pedestal next to the fence and thereby allowing children of tender years to gain access to the pool. The trial court found that defendant owed no duty to the plaintiff based on the open-and-obvious-danger rule and dismissed the complaint. Plaintiff appeals. We reverse and remand.

In determining the propriety of the dismissal of a complaint, we must accept all properly pleaded facts as true. We are concerned only with the question of law presented by the pleadings. ( Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554-55, 328 N.E.2d 538, 539-40.) Plaintiff first argues that the trial court improperly applied the law of premises liability to this case because only an owner or lawful occupier of land is entitled to invoke the law of premises liability. Plaintiff contends that since the defendant had no authority to enter the Van Hooser premises, it cannot claim the protection that premises liability law affords to lawful owners and occupiers of land. Defendant contends that it owes no duty because the danger of a pool is open and obvious and there should not be a different standard for nonowners.

We resolve this case on a more basic plane: the theoretically open and obvious nature of an above-ground pool does not relieve defendant of its duty to exercise ordinary care, and to deny such a duty in this case would be both illogical and unjust.

Why is the open-and-obvious-danger rule illogical when applied to the facts of this case? There are several reasons, but first, let us state the open-and-obvious-danger rule,

"A defendant has no duty to warn about a danger that is open and obvious,"

and then examine it in some detail.

Assuming that a defendant would ordinarily have a duty to alleviate, guard against, or at least issue a warning about a dangerous condition, why should the duty be decreased as the condition becomes more dangerous or more open and obvious? Would not and should not society expect just the opposite rule of law: the more dangerous the condition, the greater the duty to do something about it? No, say some courts, because if the danger is so open and obvious, then all plaintiffs should be aware of it, and if the defendant knows that all plaintiffs are aware of the danger because it is so open and obvious, then the defendant cannot reasonably foresee that anyone would encounter such a hazard, and since it is not reasonably foreseeable for the defendant, the defendant has no duty to do anything about it.

This analysis sounds simple and straightforward, and since it has been said often enough, it must have some validity. (See Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, 80 Ill. Dec. 40; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, 22 Ill. Dec. 701; Yacoub v. Chicago Park District (1993), 248 Ill. App. 3d 958, 618 N.E.2d 685, 188 Ill. Dec. 115; Lerma v. Rockford Blacktop Construction Co. (1993), 247 Ill. App. 3d 567, 617 N.E.2d 531; Booth v. Goodyear Tire & Rubber Co. (1992), 224 Ill. App. 3d 720, 587 N.E.2d 9, 167 Ill. Dec. 127; Engel v. Chicago & North Western Transportation Co. (1989), 186 Ill. App. 3d 522, 542 N.E.2d 729, 134 Ill. Dec. 383; Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 507 N.E.2d 19, 107 Ill. Dec. 355.) What's wrong with it?

First, it stands the safeguard of foreseeability on its head. What is the function of foreseeability in a duty analysis? To protect the defendant from events that are too remote to be likely to occur from the defendant's standpoint. This defensive use of foreseeability is what is typically encountered. The factual situation is so strange, the chances of the occurrence or injury are so small, that courts conclude that it would be unfair to impose a duty under such circumstances.

In open-and-obvious-danger situations, however, the foreseeability factor is switched from what the defendant could foresee to what the plaintiff should foresee. If there is an open and obvious danger, the defendant can obviously foresee potential injury; why then no duty? "Because," supporters of the rule say, "the plaintiff too can foresee the injury, and if the plaintiff can, then the defendant cannot conceive of a plaintiff encountering the danger."

What happens to this framework when the first plaintiff is injured by such a condition? Does it not collapse? Once a plaintiff has been injured by an encounter with any open and obvious danger, then does not such an injury from that particular condition become foreseeable for all defendants? And if it does, and if the lack of foreseeability was the sole factor that relieved defendants of a duty, then do not all defendants have a duty to take whatever action is necessary to alleviate the condition?

An affirmative answer to this question could have serious consequences for society in terms of the inefficient allocation of resources, but the economists in the courtrooms need not become unduly concerned because the question contained the solution by including the language, "and if the lack of foreseeability was the sole factor * * *." Since the lack of foreseeability was not really the sole factor (and not really the basis of the open-and-obvious-danger rule), there is no need to impose an onerous and unnecessary burden upon defendants.

But if the defendant's lack of foreseeability is not the basis for the open-and-obvious-danger rule, then what is? The true basis for the rule was alluded to by the supreme court in Ward v. K Mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288, and explored further in Harnischfeger Corp. v. Gleason Crane Rentals, Inc. (1991), 223 Ill. App. 3d 444, 585 N.E.2d 166, 165 Ill. Dec. 770. In Ward, the supreme court noted:

"Prior to this court's adoption of a comparative negligence formula in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, 52 Ill. Dec. 23, it made little difference whether the principle was treated as one of 'no duty' or one of contributory negligence. Under either characterization the result was the same: no recovery." ( Ward, 136 Ill. 2d at 143, 554 N.E.2d at 228.)

Harnischfeger stated that the open-and-obvious-danger rule views the duty concept from the standpoint of the plaintiff's conduct. As the supreme court noted in Ward, during the time that contributory negligence was a complete bar to recovery and the burden of proving freedom from contributory negligence was on the plaintiff, courts could reach the Conclusion of no liability based on the plaintiff's inability to prove freedom from contributory negligence. These Conclusions of no liability may have eased courts into their Conclusions of no duty, but as the supreme court has stated:

"Attempting to dispose of litigation by merely invoking such relative and impressive characterizations as 'known' or 'obvious' is certainly no adequate substitute for assessing the scope of the defendant's duty under the circumstances in accordance with the considerations previously identified by this court." Ward, 136 Ill. 2d at 147-48, 554 N.E.2d at 230 (citing Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, 111 Ill. Dec. 944).

To summarize our position, it is not that the defendant has no duty to deal with obviously dangerous conditions; it is that defendant's breach of duty may be relieved by the plaintiff's voluntary encounter with the known danger. Although this concept may have some validity under certain circumstances, it is totally illogical when applied to children under seven in Illinois.

To illustrate the lack of logic behind the open-and-obvious-danger rule in such cases, we will examine it in the form of a categorical syllogism (see Aldisert, Logic for Lawyers (1989)), but in two steps:

Step One

Major Premise: All people know that X is dangerous.

Minor premise: Plaintiff is a person.

Conclusion: Plaintiff knows X is ...

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