Deibert v. Bauer Bros. Const. Co., Inc.

• Decision Date: 20 December 1990
• Docket Number: No. 69400,69400
• Parties: , 152 Ill.Dec. 552 Clarence DEIBERT, Appellee, v. BAUER BROTHERS CONSTRUCTION COMPANY, INC., Appellant.
• Court: Illinois Supreme Court

Page 239

566 N.E.2d 239

141 Ill.2d 430, 152 Ill.Dec. 552

Clarence DEIBERT, Appellee, v. BAUER BROTHERS CONSTRUCTION COMPANY, INC., Appellant.

No. 69400.

Supreme Court of Illinois.

Dec. 20, 1990.

Stephen W. Thomson, Curtis L. Blood and Charles C. Compton, of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., Edwardsville, for appellant.

Cook, Shevlin, Keefe & Ysursa, Ltd., Belleville (Bruce N. Cook, of counsel), for appellee.

Bernard P. Reese, Jr., of Reese & Reese, Rockford, for amicus curiae Illinois Trial Lawyers Ass'n.

Justice CALVO delivered the opinion of the court:

Plaintiff, Clarence Deibert, brought a negligence suit in the circuit court of St. Clair County against defendant, Bauer Brothers Construction Company, Inc. A jury found in favor of plaintiff and assessed damages at $462,000. The jury also found plaintiff 40% responsible for his injuries, thereby reducing his award to $277,200. The appellate court affirmed the judgment. (188 Ill.App.3d 108, 135 Ill.Dec. 652, 544 N.E.2d 9.) We granted defendant's petition for leave to appeal (107 Ill.2d R. 315). The Illinois Trial Lawyers Association (ITLA) filed an amicus curiae brief in support of plaintiff.

Plaintiff worked for Fritz Electric Company (Fritz) as an electrician. In September 1981, Fritz was the subcontractor and defendant was the general contractor for a construction project in Belleville, Illinois. On the morning of September 8, plaintiff, while at work on the construction site, walked to and entered a portable bathroom located between two multistory buildings under construction. Plaintiff testified that it had rained the day before and the ground at the construction site was slippery. Plaintiff remained in the bathroom for 10 to 15 minutes. Upon exiting the bathroom, plaintiff stepped down six to eight inches from the bathroom to the ground. Plaintiff looked up to ascertain whether construction materials were being thrown off a balcony above and near the bathroom. As plaintiff was looking upward, he took about two steps from the bathroom before he stepped into one of several tire ruts in the ground. Plaintiff stumbled in the rut and injured his back.

The tires of a Lull, a piece of heavy machinery used by bricklayers to lift or hoist heavy equipment, created the ruts. The rut plaintiff stumbled in was about 4 to 5 inches deep, 8 to 10 inches wide, and was located directly in front of the bathroom. The ruts extended several feet to the right and left of the bathroom.

When plaintiff came out of the bathroom he looked up, not down, because workers had, in the past, thrown plasterboard and other construction materials off the balcony. Plaintiff testified that although workers were not throwing anything off the balcony that day, they had done so in the past. The evidence at trial did not reveal precisely when the workers had last thrown construction materials off the balcony.

Plaintiff did not see any ruts upon entering the bathroom, but he was not certain whether the ruts were present when he entered the bathroom. Plaintiff testified that nothing distracted him as he walked toward the bathroom. Although plaintiff stated he did not hear or notice any heavy equipment pass by while he was in the bathroom, he also testified that a Lull could have passed by without his noticing it because there was always loud noise at the construction site. Plaintiff stated that if he had watched where he was walking, he would have noticed the ruts when he exited the bathroom. Plaintiff testified the ruts were open and obvious.

Plaintiff has been a construction worker since 1957. He testified that dirt was normally present around construction sites and that ruts were often formed by heavy equipment moving around in the dirt. Plaintiff testified that workers and other individuals have to watch where they are walking to avoid ruts.

In order to succeed on a claim of negligence, a plaintiff must prove: "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach." (Cunis v. Brennan (1974), 56 Ill.2d 372, 374, 308 N.E.2d 617.) Defendant contends it had no duty to plaintiff, as a matter of law, under the circumstances. Defendant therefore asserts its motions for directed verdict and judgment notwithstanding the verdict should have been granted.

Illinois has adopted the rules set forth in sections 343 and 343A of the Restatement (Second) of Torts regarding the duty of possessors of land to their invitees. Section 343 provides:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts § 343, at 215-16 (1965).

Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 145-46, 151, 143 Ill.Dec. 288, 554 N.E.2d 223; Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 468, 343 N.E.2d 465.

Section 343A provides the following exception to section 343:

"A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." (Restatement (Second) of Torts § 343A(1), at 218 (1965).)

(Ward, 136 Ill.2d at 149-51, 143 Ill.Dec. 288, 554 N.E.2d 223.) "Known" means "not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves." (Restatement (Second) of Torts § 343A, comment b, at 219 (1965).) "Obvious" denotes that "both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment." Restatement (Second) of Torts § 343A, comment b, at 219 (1965).

Comment f to the Reporter's Notes to section 343A explains further the duty of the possessor of land as set forth in section 343A:

"There are * * * cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. * * * In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. [Citation.] It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances." (Emphasis added.) Restatement (Second) of Torts § 343A, comment f, at 220 (1965).

Ward, 136 Ill.2d at 149-51, 143 Ill.Dec. 288, 554 N.E.2d 223.

Comment f also contains these two examples:

"2. The A Department Store has a weighing scale protruding into one of its aisles, which is visible and quite obvious to anyone who looks. Behind and about the scale it displays goods to attract customers. B, a customer, passing through the aisle, is intent on looking at the displayed goods. B does not discover the scale, stumbles over it, and is injured. A is subject to liability to B.

3. The A Drug Store has a soda fountain on a platform raised six inches above the floor. The condition is visible and quite obvious. B, a customer, discovers the condition when she ascends the platform and sits down on a stool to buy some ice cream. When she has finished, she forgets the condition, misses her step, falls, and is injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B." Restatement (Second) of Torts § 343A, comment f, at 220-21 (1965).

See Shaffer v. Mays (1986), 140 Ill.App.3d 779, 782, 95 Ill.Dec. 83, 489 N.E.2d 35.

Defendant contends the rut plaintiff tripped in was obvious and plaintiff was not distracted at the time he left the bathroom. Defendant argues that plaintiff testified the ruts were obvious and he would have seen the ruts if he had watched where he was walking. Defendant also points out that plaintiff admitted he was not distracted when he entered the bathroom. Defendant contends that the evidence revealed nothing was being thrown off the balcony on the day of plaintiff's accident. Defendant notes that plaintiff did not testify he was distracted as he left the bathroom. Plaintiff merely said he looked up when he exited the bathroom because workers had thrown plasterboard off the balcony in the past. Plaintiff did not testify, defendant argues, that he looked up for his safety. It is defendant's contention that plaintiff was inattentive rather than actually distracted. Defendant, therefore, concludes it owed no duty to plaintiff pursuant to sections 343 and 343A.

Generally, under section 343, as well as under common law, a possessor of land owes its invitees a duty of reasonable care to maintain the premises in a reasonably safe condition. (Ward, 136 Ill.2d at 141, 146, 143 Ill.Dec. 288, 554 N.E.2d 223.) Section 343A provides that a possessor of land cannot...