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An Open (and Obvious?) Decision on Hazards

by | Sep 13, 2022 | Firm News |

Recently, an Appellate Court decision in Illinois reinforced the legal principle that the “open and obvious” doctrine is not a get-out-of-jail-free card for tortfeasors. In Fox v. Ameren, the Fourth District Appellate Court found that an injury alleged to be caused by an impermissibly low-hanging powerline was not barred by the doctrine. Fox v. Ameren Illinois Co., 2022 IL App (4th) 210633.

In the case, Bradley A. Fox alleged that he was hired by the City of Beardstown Illinois to perform work near Ameren powerlines, during which the extended boom on his truck came into contact with the powerlines, and he was injured. It came to be found that the lines were 17.379 feet off the ground, which is less than the 20.75 feet of clearance required by the National Electric Safety Code. An accident reconstruction expert opined that, had the lines been at the proper height, Fox would not have come into contact with them. Fox sued Ameren, alleging that they had breached both a statutory duty and a common-law duty to maintain their lines in a safe condition.

Ameren argued that Fox was aware of the danger the lines posed, could clearly see their location, and chose to put his boom there nonetheless. Under the “open and obvious” doctrine, there is less duty to protect against a condition if a reasonable person would recognize the condition and the risk posed by that condition (subject, of course, to a myriad of exceptions). The risk of injury is considered low if people perceive and know to avoid the condition, and the potential defendant is considered to be less able to foresee an injury caused by an open and obvious condition. The trial court agreed with Ameren’s argument and found that Ameren did not have a statutory nor common law duty in the accident that would lead to its liability.

The Fourth District Appellate court disagreed, reversing the trial court on both counts. On the matter of the statutory duty, the Court found that Public Utilities Act in Illinois, which codified the National Electrical Safety Code, was clearly enacted to impose liability in exactly these sorts of injuries. Electrical lines are clearly dangerous, which is why the legislature passed the law to protect people from ones which were improperly installed. Since powerlines are almost always clearly visible, the law would be virtually worthless if an “open and obvious” exception was allowed to it. The court points out that, under Ameren’s view, a power company could string powerlines around a town four feet off of the sidewalk and then use the same argument—surely such lines would be very, very obvious—but it would be absurd to exempt that company from liability if pedestrians were injured by such behavior.

On the common law argument, the court similarly points out that, because there is arguably a very specific standard of care in this case (that is, that powerlines ought to be 20.75 off the ground), the normal analysis of duty that would implicate the “open and obvious” principle does not apply in the same manner as similar cases. While Ameren is free to argue other defenses to the suit, such as comparative negligence or proximate cause, because of the very specific regulatory scheme it cannot reasonably argue that it had no duty as a matter of law. Going even further, the Court bolsters this argument by stating that Ameren should properly lose even if one takes that out of it, since mere weeks prior to Fox’s injury a normal-sized dump truck had run into the same powerlines and knocked them down, which should have provided all the notice Ameren needed to foresee that the powerlines were probably not at a safe height.

All in all, a good decision for premises liability in Illinois, and a useful analysis of the “open and obvious” doctrine as applied to situations where there are violations of regulatory standards.