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Open and Obvious Doctrine

The Kirchner saga has finally come to an end.  As you may remember, Kirchner was a 20-year-old who got drunk down in the Cleveland Flats, walked out onto the pier to relieve himself, fell into the river, and drowned.  Back in July, the 8th District affirmed a grant of summary judgment in the suit his parents brought against the bar, saying that the danger was open and obvious.  The case was certified to the Supreme Court, but that court kicked it out a couple of weeks ago because the appellant's counsel stopped payment on the check for the filing fee.  Well, last week the appellant filed a motion for reconsideration, tendering a new check.  The Court said, no thanks.

That should be a fun discussion with the client, don't you think?

Speaking of the open and obvious doctrine, there was an important case on this out of the 9th District recently.  In Marock v. Liedertafel, the plaintiff, while returning to her table, had tripped over a case of empty beer bottles that had been left in a narrow walkway.  The trial court granted summary judgment, saying that the obstruction was open and obvious.

The court reversed, holding that the "attendant circumstances" -- the dim lighting in the bar, the noise, the activities of other patrons -- made the question of whether the plaintiff should "reasonably" have been expected to see the beer case one for the trier of fact.  While other courts have used attendant circumstances to blunt the effect of the open and obvious doctrine -- as I noted several months ago -- the 9th District's treatment was unique.  While other courts have held that attendant circumstance can create an exception to the open and obvious doctrine, the 9th District decided that it's all one big ball of wax:  attendant circumstances are part of the "totality" of the circumstances in gauging whether a hazard is open and obvious to begin with.

I'm not sure this is going to alter the outcomes in many cases:  determining whether attendant circumstances create an exception to the application of the open and obvious doctrine in a particular situation, or determining from the totality of the circumstances whether something is open and obvious to begin with, seems to be six of one, half a dozen of the other.  It's certainly not going to lend a lot of clarity to the law; as anybody who's studied the decisions on stop and frisk or pretrial identification knows, "totality of the circumstances" isn't a magic wand by which all the vagaries in the case law disappear. 

On balance, it's a favorable case to plaintiffs, if only because it focuses attention on the key question of whether a hazard is indeed open and obvious.  Frankly, I'm not sure that the 9th District had to go to the lengths it did in reversing the grant of summary judgment.  Let's face it, if whether a beer case on the floor in a narrow walkway in a dimly-lit bar constitutes an open and obvious hazard isn't a question for a jury, what is?

By the way, this is the 6-month anniversary of The Briefcase.  Party down, guys.

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