A hospital parking lot gate contained written and pictorial signage warning of potential safety hazards of serious injury or death. Plaintiff, who was not wearing a helmet, ignored the multiple warning signs and attempted to drive her motorcycle through the parking lot gate.[i] As plaintiff entered, the gate struck her on the head.[ii] Despite the posted warnings, plaintiff blamed Advocate Health and Hospitals Corporations (Advocate) — the owner and operator of the parking lot gate — and sued Advocate for premises liability, alleging negligence.[iii]

The trial court granted Advocate’s motion for summary judgment.[iv] On appeal,[v] the appellate court affirmed the trial court’s grant of summary judgment finding Advocate did not owe plaintiff a duty of care.[vi]

The Analysis

In its opinion, the court explained while “an operator of a business owes his invitees a duty to exercise reasonable care to maintain his premises in a reasonably safe condition,” an exception may apply if a condition is open and obvious.[vii] The open and obvious doctrine states that “‘persons who own, occupy, or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.’”[viii] Obvious means that both the condition and risks are apparent and would be recognized by a reasonable visitor, exercising ordinary perception, intelligence, and judgment.[ix]

Even if a dangerous condition is open and obvious, a landowner may still owe a duty to a visitor if the landowner anticipates the harm despite it being open and obvious.[x] However, “[w]here the condition is open and obvious, the foreseeability of harm and the likelihood of injury will be slight, thus weighing against the imposition of a duty.”[xi]

The court found “the danger posed by the electronic gate arm here was clearly open and obvious and a reasonable person in [plaintiff’s] position would have appreciated the risk it posed.”[xii] This finding was premised on the following facts: (1) plaintiff had been to the parking lot at least 10 times before, and (2) usually when plaintiff arrived, the gate was down and would have to be raised by the parking lot attendant before plaintiff could enter.[xiii]

Further, there were warning signs posted on both the gate arm and the mechanism box warning of the dangers posed by the gate.[xiv] “These warnings expressly stated that motorcycles were not permitted in the parking lot and cautioned that the ‘moving gate can cause serious injury or death.’”[xv]

The court concluded the condition of the parking lot gate arm was open and obvious “[b]ecause the danger posed by the gate was readily observable and because a reasonable person in [plaintiff’s] position would have appreciated the risk it posed.”[xvi] The court also recognized a trend in courts across the country to deem parking lot gate arms as open and obvious dangers.[xvii]

Plaintiff next argued the applicability of the “deliberate encounter exception.”[xviii] This “exception to the open and obvious rule applies ‘“where the possessor [of land] has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position, the advantages of doing so would outweigh the apparent risk.”’”[xix]

The court disagreed, explaining there was nothing in the record indicating Advocate could have reasonably foreseen plaintiff’s injury.[xx] Warning signs explicitly prohibiting motorcycle entry were posted.[xxi] Having stopped at the gate numerous times during prior visits, plaintiff had adequate opportunity to see these warnings.[xxii] Three hospital public safety workers could not recall an instance of another person being injured in this way and there was no evidence of prior incidents where someone was hit by the parking lot gate.[xxiii] Accordingly, Advocate could not have reasonably anticipated plaintiff entering the parking lot on her motorcycle and being struck on the head.[xxiv] As such, the court held the deliberate encounter exception did not apply.[xxv]

The final step in the court’s analysis was determining whether Advocate owed plaintiff a duty. This was based on: “(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.”[xxvi]

The court paid little attention to the first factor as a defendant is usually not required to foresee injury caused by an open and obvious dangerous condition.[xxvii] Similarly, the second factor carried “little weight because ‘it is assumed that persons encountering the potentially dangerous condition of the land will appreciate and avoid the risks,’ making the likelihood of injury slight.”[xxviii] Addressing the third factor, the court explained Advocate placed warning signs on both the parking lot gate arm and the gate’s stationary mechanism box, located at the entrance to the lot.[xxix] “These signs were sufficient to put a reasonable motorcyclist on notice that they needed to park elsewhere.”[xxx] Regarding the fourth factor, and responding to plaintiff’s argument that Advocate should have been required to staff the parking lots with attendants, the court found that requiring Advocate to staff its parking lots with attendants would impose too high a burden, especially when there were warning signs already posted.[xxxi] Therefore, the court concluded Advocate did not owe plaintiff a duty.[xxxii]

The Takeaways

While at first blush, liability in a plaintiff’s case may appear supportable, this court’s analysis shows us there are many layers to the duty of care. Here, the facts were clear from the beginning: plaintiff entered the parking gate at her own risk, and the defendant should not have been made to shoulder the burden. Defense counsel must look at every angle to see whether these intricacies can benefit the defense. Be sure to assess how each rule and exception apply in a given claim, and whether a motion for summary makes sense.

No matter how headstrong the plaintiff may be, defense counsel must look for the weaknesses in a case. A savvy and strategic attorney will ”know when to hold ‘em” and “know when to fold ‘em.”[xxxiii]

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Sources

[i] Davis v. Advocate Health and Hospitals Corporation, 2024 IL App (1st) 231396, ¶1, 4.

[ii] Id. at ¶1.

[iii] Id. at ¶3, 10.

[iv] Id. at ¶10.

[v] Id.

[vi] Id. at ¶1.

[vii] Id. at ¶ 19.

[viii] Id.(quoting Henderson v. Lofts at Lake Arlington Towne Condominium Ass’n, 2018 IL App (1st) 162744, ¶ 40 (quoting Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-48 (1996)); Park v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 101283, ¶ 12.)

[ix] Id. at ¶ 19.

[x] Id. at ¶ 20

[xi] Bruns v. City of Centralia, 2014 IL 116998, ¶ 19.

[xii] Davis, 2024 IL App (1st) 231396, ¶ 23.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id. at ¶ 24

[xviii] Id. at . ¶ 26.

[xix] Id.(quoting Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002) (quoting Restatement (Second) of Torts § 343A(1), Comment f, at p. 220 (1965))).

[xx] Id. at ¶ 28.

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] Id. at ¶ 29.

[xxvii] Id.

[xxviii] Bruns, 2014 IL 116998, ¶ 34 (quoting Sollami, 201 Ill. 2d at 17).

[xxix] Davis, 2024 IL App (1st) 231396, ¶ 29.

[xxx] Id.

[xxxi] Id.

[xxxii] Id.

[xxxiii] “The Gambler,” music and lyrics by Don Schlitz in 1976 (although best known as having been performed by Kenny Rogers in 1978.)