Contact me at markploftus@aol.com

The Illinois Appellate Court, Second District, recently weighed in on the "open and obvious" debate, which involves whether certain activities or conditions will be regarded as clearly dangerous, even if encountered by children. In Allen v. Martinez, the minor plaintiff was injured when he fell while jumping on a trampoline on the property of the defendant. The plaintiff, through his parents, sued the owners of the property and alleged that they failed to warn the child of the danger and also failed to properly supervise the use of the trampoline. The defendants moved for summary judgment, arguing that the danger was open and obvious. The trial court granted the motion and the plaintiff appealed.

The child, who was 11 at the time of his injury, testified that prior to his injury, he had never been on a trampoline and only knew that "...if you jump on it, you can go higher and it looked fun." In addition he testified that it had never occurred to him that "...you could get hurt."

The Appellate Court, in ruling on the motion, first noted that the Illinois Supreme Court had held in an earlier decision that risk of injury from a trampoline was open and obvious. See Sollami v. Eaton, 201 Ill.2d 1. The Sollami opinion had held that any child old enough to be on his or her own is old enough to appreciate the dangers associated with a trampoline(i.e. getting hurt when you fall from a great height). The Court also noted that generally a landowner is not liable for harm a person suffers from an open an obvious danger unless a) the person will be distracted from the danger or b) the person will reasonably encounter the obvious risk. The Appellate Court, after disregarding an affadavit from an expert, ruled that the defendants owned no duty - the risk of injury was open and obvious.

The reason for that rather dry recitation of law, is that the opinion will likely be cited by the defendants in a case I recently filed in McHenry County, Illinois - located in the Second Appellate District. In my case, a young kid(11) was riding his bike over an unimproved lot near his house. The owners of the lot didn't maintain it and allowed kids to frequent it on foot and bikes. There were bike paths on the property and my client had only been there once before. He was on his way to a local convenience store and decided to cut through the lot. Parties unknown had apparently placed some logs on the paths in an effort to create some sort of jump. My client wasn't aware of any jump as he rode along - he hit it, fell and badly broke his hip. Now has hardware in the hip and has significant disability. One leg will likely be permanently shorter than the other. Is the landowner liable for those conditions that others had placed on his lot? How about if he had been warned that activity was going on and he hadn't taken any action? And finally, what if another kid had been injured there before my client? I expect a Motion of some sort in my case, which was just recently filed. Will advise when it comes down the pike...