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June 24, 2006

There are 12 judges on the court of appeals here, which makes for a lot of combinations for the three-judge panels.  (I'd tell you exactly how many possible permutations there are, but the reason I went to law school is that they promised there wouldn't be any math.)  One of the side benefits of that is that every now and then we're treated to Dueling Panels.

This happened earlier this year with regard to the open and obvious doctrine, which I discussed last week.  Back in 2005, in Hamaoui v. Tops, the court reviewed the grant of a summary judgment to a grocery store.  The plaintiff customer had stepped on a wooden pallet to retrieve two cases of soda, and the pallet collapsed under him, due in no small part to his weighing 315 pounds.  (The dissent argued that the store could not have anticipated that someone would step on pallet, especially not "someone of plaintiff's bulk."  Where's the love?)  The majority reversed , holding that it was up to the jury to sort all this out.

Fast-forward to early this year, when another slip-and-fall hits the court, this time involving a bicyclist who'd fallen into a hole on a sidewalk.  He argued that under Hamouai, the "attendant circumstances" surrounding his fall made liabiity a question for the jury, but the court wasn't buying, disposing of Hamouai by noting the "particularly persuasive" dissenting opinion.

What this shows, more than anything, is the difficulty the courts continue to have wrestling with the "open and obvious" doctrine.  As I mentioned last week, the concept is premised on the notion that a landowner has no duty to protect an invitee from hazards which are open and obvious.  There's language in numerous Supreme Court cases that "duty" is a question to be determined by as a matter of law.  That's fine for the crystal-clear cases, such as this one from a couple months' back, where a customer trips over a parking barrier that's sitting in plain sight.  But when the situation is a little murkier, at what point does a "question of law" become a question of fact for a jury?

One of the ways the courts have tried to deal with this is by holding that the "attendant circumstances" can make whether something's open and obvious a jury question.  But these decisions wind up all over the place, too.  In Klauss v. Glassman, our court reversed a summary judgment where the plaintiff had tripped over a pallet left in the cross-aisle of a store; in this case, the 12th District upheld summary judgment where the plaintiff did virtually the same thing.  Some courts hold that lighting is an "attendant circumstnace," others hold that it isn't, because a person should be more careful in dimmer-lighted areas.

Slip and falls have never been any lawyer's favorite, and the stricter application of the "open and obvious" doctrine in the past few years hasn't helped.  If you've got one of these, the best thing to do is start with Judge Gallagher's opinion in the Klauss case and work from there.

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