Ford v. Round Barn True Value, Inc.

NO. 4-06-1008 Filed Eff. 9/5/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

SHANNON W. FORD, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
ROUND BARN TRUE VALUE, INC., d/b/a ) No. 05L243
SUNNYCREST TRUE VALUE; BODY FIRM, )
INC., d/b/a GOLD'S GYM; and DANIEL ) Honorable
MARK McCULLEY, d/b/a GOLD'S GYM, ) Jeffrey B. Ford,
Defendants-Appellees. ) Judge Presiding.
______________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In October 2005, plaintiff, Shannon W. Ford, filed a

three-count negligence suit against defendants, Round Barn True

Value, Inc., doing business as Sunnycrest True Value (True

Value); Body Firm, Inc., doing business as Gold's Gym; and Daniel

Mark McCulley, doing business as Gold's Gym (Body Firm and

McCulley are hereinafter collectively referred to as Gold's Gym),

for his injury sustained in True Value's parking lot after he had

worked out at Gold's Gym. In January 2006, Gold's Gym filed a

motion to dismiss plaintiff's complaint pursuant to section 2-619

of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619

(West 2004)). After a March 2006 hearing, the trial court

granted Gold's Gym's motion to dismiss. In June 2006, True Value

filed a motion for summary judgment. After an October 2006

hearing, the court granted summary judgment in favor of True

Value.
 Plaintiff appeals, contending the trial court erred by

granting (1) Gold's Gym's motion to dismiss and (2) True Value's

motion for summary judgment. We affirm.

I. BACKGROUND

According to plaintiff's deposition, on October 20,

2003, he had been a member of Gold's Gym on Colorado Avenue in

Urbana, Illinois, for approximately a year and half. Between 7

and 9 p.m. that evening, plaintiff rode his motorcycle to Gold's

Gym to work out. After driving around Gold's Gym's parking lot

and observing no empty parking spaces, plaintiff rode his motor-

cycle into True Value's parking lot, which was adjacent to Gold's

Gym. True Value was closed when plaintiff entered the parking

lot. Plaintiff parked his motorcycle in True Value's parking lot

and went into Gold's Gym. He had parked at True Value when at

Gold's Gym on about 20 times prior to that evening.

While plaintiff had never discussed parking at True

Value with anyone at Gold's Gym or True Value, Gold's Gym had a

sign posted on its front door and bulletin board that stated the

following:

"ATTENTION MEMBERS:

TRUE VALUE HAS BEEN KIND ENOUGH TO LET

US USE THEIR PARKING LOT--SO PLEASE DO NOT

ABUSE THIS PRIVILEGE.

PLEASE ONLY PARK ON THE EAST SIDE OF THE

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 LOT BEFORE 6PM SO THEY HAVE ROOM FOR THEIR

CUSTOMERS.

THANK YOU FOR BEING COURTEOUS, AND RE-

MEMBER TO SHOP TRUE VALUE FOR ALL YOUR HOUSE-

HOLD NEEDS." (Emphases in original.)

Plaintiff worked out for about 30 to 45 minutes. After

the workout, plaintiff returned to his motorcycle. He started

the motorcycle and proceeded to the parking lot's exit that faced

Philo Avenue at a speed of between 10 to 15 miles per hour. As

plaintiff approached the exit, he slowed down to around three

miles per hour to watch for oncoming traffic. He then spotted

several potholes with gravel around them. Plaintiff was about 10

feet away from the gravel when he saw it. Plaintiff continued to

brake and drove to the left side of one of the potholes to avoid

it. On the exit's decline to the street, plaintiff's motorcycle

caught some gravel from the pothole, which caused the motorcycle

to tilt toward the left. Plaintiff put his left foot down to

brace the motorcycle and jammed his left tibia against the

concrete. Plaintiff was able to keep the motorcycle up and put

the kickstand down. Plaintiff then fell off the motorcycle

because he could not walk. He had suffered a fracture to his

tibial plateau. At the time of the accident, it was dusk, the

weather was warm and clear, and the pavement was dry.

Plaintiff also stated he had driven through the area

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where the accident had occurred on prior visits to Gold's Gym.

He also indicated he was aware a motorcycle could slip and slide

on gravel at low speeds.

In his deposition, Lance Cooper, the True Value manager

and son of the owners, testified he was aware of a pothole

existing on October 20, 2003, but did not have any recollection

of loose gravel inside or around the pothole. Lance described

the pothole as shallow and estimated it at no more than an inch

in depth. The parking lot was paved with blacktop and could have

had broken blacktop, which Lance defined as granules of blacktop.

The pothole was located in an area that sloped to the street.

After Lance became aware of plaintiff's accident, he inspected

the area of the parking lot where the accident occurred. Lance

stated the pothole was of shallow depth and that he had person-

ally driven over it. He did see loose blacktop in the area but

did not consider it to be a potential hazard.

Lance also indicated he drove a motorcycle and had

driven it on True Value's parking lot in the area at issue before

October 20, 2003. He denied having encountered loose blacktop or

having any problems. Lance believed encountering loose blacktop

while slowing down on a motorcycle could present a hazard. He

was unaware of any other accidents resulting from the pothole at

issue and had no knowledge of anyone complaining about the

pothole.

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 We note other depositions were taken and included in

the record but are not necessary to our resolution of the issues

on appeal.

On October 19, 2005, plaintiff filed a three-count

negligence complaint against True Value and Gold's Gym. In

November 2005, True Value filed an answer and asserted three

affirmative defenses to plaintiff's complaint. In January 2006,

Gold's Gym filed a section 2-619 motion to dismiss, asserting it

did not own, maintain, or control the parking lot on which

plaintiff was injured. Attached to the motion was an affidavit

by McCulley. In the affidavit, he stated that, at the time of

the accident, True Value allowed customers visiting Gold's Gym to

use its parking lot. Neither he nor Body Firm had any ownership

interest in True Value's parking lot. Additionally, neither he

nor Body Firm had ever requested, performed, or paid for any

upkeep, maintenance, or repairs on True Value's parking lot.

Plaintiff filed a response to the motion to dismiss but did not

attach any counteraffidavits or in any other way challenge

McCulley's affidavit. After a March 2006 hearing, the trial

court granted Gold's Gym's motion to dismiss.

In June 2006, True Value filed a motion for summary

judgment, asserting (1) it had no duty to warn because the gravel

was an open and obvious condition, (2) it did not owe plaintiff a

duty of reasonable care because he was a trespasser, (3) the

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gravel was not an unreasonably dangerous condition, and (4) True

Value did not have actual or constructive notice of the dangerous

condition. In September 2006, plaintiff filed a response to True

Value's summary judgment motion, to which he attached his affida-

vit. In his affidavit, plaintiff indicated he was going to exit

onto Colorado Avenue, not Philo Avenue as he had stated in his

deposition. He also stated that, when he first observed the

pothole, he did not see the gravel strewn around it. Plaintiff

noted he only saw the pothole from 10 feet away, not the gravel.

He went to the left to avoid the pothole and redirected his

attention toward the traffic on Colorado Avenue. While he was

able to avoid the pothole, he could not avoid the gravel around

it. Immediately before encountering the gravel, his attention

had been on the traffic on Colorado Avenue. In October 2006,

True Value filed a motion to strike plaintiff's affidavit.

In October 2006, the trial court held a joint hearing

on True Value's motion for summary judgment and its motion to

strike plaintiff's affidavit. While the court did not expressly

state it was striking plaintiff's affidavit, the court declared

plaintiff was bound by his deposition testimony. The court

further found True Value did not owe plaintiff a duty because the

condition was open and obvious and that plaintiff was a tres-

passer at the time of the accident. In accordance with its

findings, the court granted summary judgment in favor of True

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Value. This appeal followed.

II. ANALYSIS

A. Gold's Gym's Motion To Dismiss

Plaintiff first asserts the trial court erred in

granting Gold's Gym's motion to dismiss.

With a motion to dismiss under section 2-619 of the

Procedure Code (735 ILCS 5/2-619 (West 2004)), the movant admits

the legal sufficiency of the plaintiff's complaint but asserts an

affirmative defense or other matter that avoids or defeats the

plaintiff's claim. Such a motion presents a question of law, and

thus our review of the trial court's ruling on the motion is de

novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229,

236 (2006). Moreover, in ruling on a section 2-619 motion to

dismiss, a court may consider pleadings, depositions, and affida-

vits. When affidavits in support of the motion have not been

challenged or contradicted by appropriate methods, the court

deems admitted the facts stated in the supporting affidavits.

Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248,

262, 807 N.E.2d 439, 447 (2004).

To prevail in a negligence action, a plaintiff's

complaint must set forth facts establishing the existence of (1)

a duty owed by the defendant to the plaintiff, (2) a breach of

that duty, and (3) an injury proximately caused by that breach.

Marshall v. Burger King Corp., 222 Ill. 2d 422, 430, 856 N.E.2d

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1048, 1053 (2006). Citing Hanks v. Mount Prospect Park District,

244 Ill. App. 3d 212, 217-18, 614 N.E.2d 135, 139 (1993), in its

motion to dismiss, Gold's Gym asserted plaintiff could not

establish it owed him a duty because his injury occurred on land

owned by and under the control of True Value. In Hankes, 244

Ill. App. 3d at 213, 614 N.E.2d at 136, the plaintiff was struck

by a car when crossing a private parking lot owned by another

party after she had been playing on a playground owned by defen-

dant that was directly south of the parking lot. The court found

the defendant did not owe a duty to plaintiff because the injury

occurred on land that was not owned or controlled by the defen-

dant. Hanks, 244 Ill. App. 3d at 218, 614 N.E.2d at 139.

Plaintiff contends this case is distinguishable from

Hanks and Gold's Gym owed him a duty based upon its status as a

landowner and other common-law principles.

Generally, "[a] landowner has a duty to provide a safe

means of ingress and egress to his premises for his invitees."

Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 902, 735 N.E.2d

758, 764 (2000). Depending on the particular facts of the case,

that duty may extend beyond the precise boundaries of such

premises. Abdo v. Trek Transportation Co., 221 Ill. App. 3d 493,

497, 582 N.E.2d 247, 251 (1991).

With sidewalks, a landowner will not ordinarily be held

liable for injuries sustained on a public sidewalk under a

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municipality's control, even where the sidewalk may also be used

for ingress or egress to the landowner's premises. Friedman v.

City of Chicago, 333 Ill. App. 3d 1070, 1073, 777 N.E.2d 430, 433

(2002). However, if the landowner appropriates the sidewalk for

its own use, the landowner then has a duty to insure the sidewalk

is safe. Dodd v. Cavett Rexall Drugs, Inc., 178 Ill. App. 3d

424, 432, 533 N.E.2d 486, 491 (1988). In cases where the land-

owner has been held to have appropriated a sidewalk for its own

use, the courts have found the owner performed an affirmative act

of appropriation. Dodd, 178 Ill. App. 3d at 432, 533 N.E.2d at

491. Plaintiff cites two such sidewalk cases.

In McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d

345, 348, 272 N.E.2d 369, 371 (1971), the plaintiff was injured

when she stepped into a hole in a parkway owned by the city and

located across a public sidewalk from the parking lot maintained

by the defendant for its tavern and bowling patrons. The side-

walk adjacent to the defendant's parking lot was regularly used

by the defendant's patrons for parking purposes, which blocked it

for normal use by the patrons. McDonald, 1 Ill. App. 3d at 352,

272 N.E.2d at 374. The McDonald court noted plaintiff had

exercised the only means of egress made available by the defen-

dant. McDonald, 1 Ill. App. 3d at 353, 272 N.E.2d at 374.

Additionally, the owner of the business testified he had known of

a defect at issue for some time. McDonald, 1 Ill. App. 3d at

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350, 272 N.E.2d at 372.

In Cooley v. Makse, 46 Ill. App. 2d 25, 27, 196 N.E.2d

396, 397 (1964), the plaintiff fell some two or three feet from a

tavern's concrete steps on a brick walk that was on a city-owned

easement. The brick walk was a means of ingress and egress to

the tavern building as it provided the only access to the front

door. Cooley, 46 Ill. App. 2d at 28, 30, 196 N.E.2d at 397-98.

The Cooley court found the normal use of the tavern's entrance by

an invitee presupposed the normal use of the brick walk where the

plaintiff was injured. Cooley, 46 Ill. App. 2d at 32, 196 N.E.2d

at 399. Both the tenant tavern owner and the landlord knew or

should have known of the brick walk's condition. Cooley, 46 Ill.

App. 2d at 31, 196 N.E.2d at 398-99.

In this case, we are not dealing with an accident on an

adjacent public sidewalk or other public property as in Coley and

McDonald. We have an accident on adjacent private property as in

Hanks. McCulley stated in his affidavit that True Value allowed

customers of Gold's Gym to use True Value's parking lot. As

plaintiff stated in paragraph six of both counts against Gold's

Gym, True Value controlled and maintained the parking lot.

McCulley's affidavit also indicated Gold's Gym did not in any way

participate in the maintenance or repairs of True Value's parking

lot. Moreover, no facts were alleged that Gold’s Gym's in any

way altered True Value's parking lot, interfered with True

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Value's control and/or maintenance of its property, or treated

True Value's parking lot as its own. Thus, the facts indicate

True Value retained all control and maintenance of the parking

lot and Gold's Gym was merely given permission to have its

customers use True Value's parking lot. We disagree with plain-

tiff that Gold’s Gym's communication of True Value's permission

to use its parking lot was an affirmative act of appropriation.

We also disagree Hanks is distinguishable because Gold's Gym

informed its customers they could park on True Value's parking

lot. Accordingly, we find Gold's Gym did not owe a duty to

plaintiff as the adjacent property owner.

Moreover, we agree with Gold's Gym that plaintiff has

forfeited his other arguments challenging the trial court's

dismissal by failing to cite authority as required by Supreme

Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)). See In re

Estate of Doyle, 362 Ill. App. 3d 293, 301, 838 N.E.2d 355, 362-

63 (2005).

Thus, we find the trial court did not err by granting

Gold's Gym's motion to dismiss.

B. True Value's Motion for Summary Judgment

Plaintiff also contends the trial court erred by

granting True Value's summary-judgment motion.

A grant of summary judgment is appropriate when the

pleadings, depositions, admissions, and affidavits demonstrate no

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genuine issue of material fact exists and the movant is entitled

to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West

2004); Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d

195, 214-15, 850 N.E.2d 183, 195 (2006). While summary judgment

aids in the expeditious disposition of a lawsuit, it is a drastic

means of disposing of litigation and thus should be allowed only

when the right of the moving party is clear and free from doubt.

Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43, 809

N.E.2d 1248, 1256 (2004). We review de novo the trial court's

grant of a motion for summary judgment. See Governmental

Interinsurance Exchange, 221 Ill. 2d at 215, 850 N.E.2d at 195.

In determining whether a defendant owed plaintiff a

duty, courts consider the following: (1) the reasonable

foreseeability and (2) the likelihood of injury, and (3) the

magnitude of the burden on the defendant in guarding against

injury and (4) the consequences of placing that burden on the

defendant. LaFever v. Kemlite Co., 185 Ill. 2d 380, 389, 706

N.E.2d 441, 446 (1998). When a plaintiff alleges an injury

caused by a condition on a defendant's property while on the

property as an invitee, this court analyzes the foreseeability

factor under section 343 of the Restatement (Second) of Torts

(Restatement) (Restatement (Second) of Torts §343 (1965)).

LaFever, 185 Ill. 2d at 389, 706 N.E.2d at 447. Section 343

states, in pertinent part, the following:

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 "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." Restate-

ment (Second) of Torts §343, at 215-16

(1965).

Our supreme court has adopted section 343A of the

Restatement (Restatement (Second) of Torts §343A (1965)), which

provides an "open and obvious hazard" exception to the duty of

care established in section 343. LaFever, 185 Ill. 2d at 390,

706 N.E.2d at 447. Section 343A(1) states:

"A possessor of land is not liable to

his invitees for physical harm caused to them

by any activity or condition on the land

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 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).

The Restatement defines "known" as "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). Something is "obvious" if

"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). We note plaintiff's cite to Deibert v. Bauer Brothers

Construction Co., 141 Ill. 2d 430, 434-35, 566 N.E.2d 239, 241

(1990), is incorrect as the supreme court quoted the same

Restatement definition of "obvious" that we have, which does not

mention protecting oneself against the condition. See Deibert,

141 Ill. 2d at 435, 566 N.E.2d at 241, quoting Restatement

(Second) of Torts §343A(1), at 218 (1965).

Here, plaintiff saw the gravel around the pothole when

he was 10 feet away from it. Moreover, plaintiff was aware that

riding on gravel at slow speeds could cause a motorcycle to slip.

Since plaintiff was aware of the gravel and the risk it posed at

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slow speeds, the gravel met the Restatement's definition of a

"known" condition.

The gravel also met the Restatement's definition of an

"obvious" condition. Plaintiff saw the gravel 10 feet before he

encountered it and did not testify or allege the gravel was

hidden or obscured from view in any way. Lance also testified

loose blacktop was visible around the pothole when he inspected

it sometime after the accident. Moreover, Lance, who also rode a

motorcycle, was aware gravel was a potential hazard for

motorcycles at slow speeds. Thus, a reasonable person in

plaintiff's position would recognize the condition and the risk

associated with it. Further, the gravel is similar to the rut

found to meet the "obvious" definition in Deibert, 141 Ill. 2d at

438, 566 N.E.2d at 243. There, the plaintiff indicated that, if

he had watched where he was walking, he would have seen the rut.

Also, no evidence was presented the rut was concealed or hidden

in any way. Deibert, 141 Ill. 2d at 438, 566 N.E.2d at 243.

Accordingly, we find the undisputed facts demonstrate

the gravel was a known and obvious condition in this case.

However, the section 343A(1) exception has its own

exception for when "the possessor should anticipate the harm

despite such knowledge or obviousness." Restatement (Second) of

Torts §343A(1), at 218 (1965). A possessor should anticipate

harm to an invitee when the possessor "has reason to expect that

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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." Restatement (Second) of

Torts §343A, Comment f, at 220 (1965).

Primarily, when Illinois courts have applied the

distraction exception to impose a duty upon a landowner, the

facts were clear "the landowner created, contributed to, or was

responsible in some way for the distraction which diverted the

plaintiff's attention from the open and obvious condition and,

thus, was charged with reasonable foreseeability that an injury

might occur." Sandoval v. City of Chicago, 357 Ill. App. 3d

1023, 1030, 830 N.E.2d 722, 729 (2005). Here, plaintiff saw the

condition that caused his injury when he was 10 feet away from it

and chose to drive over it. Plaintiff did not testify he forgot

about the gravel after he saw it or failed to protect himself

from it due to a distraction. Moreover, assuming, arguendo,

plaintiff was distracted by traffic conditions, True Value did

not create, contribute to, or take responsibility for the traffic

on the adjacent public street. Plaintiff has failed to cite any

authority where the distraction exception was applied to a

distraction created by the general public.

Thus, under Restatement section 343A, plaintiff's

injury was not reasonably foreseeable. As to the other three

factors, gravel is something most people encounter on a daily

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basis without injury. Plaintiff himself testified he had driven

over gravel before without incident. Thus, the likelihood of

injury is small. Further, to guard against injury, a parking lot

owner would have to keep the lot free of gravel, which would be a

great burden as gravel is usually found on parking lots. Last,

requiring parking lots to be free of gravel would have

significant consequences as landowners would have to constantly

monitor their parking lots to keep them gravel free.

Accordingly, we find True Value did not owe plaintiff a duty even

if he was an invitee. Since no duty existed to plaintiff if he

was an invitee, summary judgment in favor of True Value was

appropriate, and we need not address the other issues raised by

plaintiff.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

APPLETON, P.J., concurs.

MYERSCOUGH, J., specially concurs.

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 JUSTICE MYERSCOUGH, specially concurring:

While I specially concur in the majority's decision, I

write separately to acknowledge reservations about the continued

viability of the open-and-obvious doctrine in our comparative-

negligence system. Whether an open and obvious danger can

function to eliminate a landowner's duty of reasonable care he

owes an invitee is disputed among various states. Some

jurisdictions adopting comparative-negligence principles have

chosen to eliminate the doctrine (Rockweit v. Senecal, 197 Wis.

2d 409, 422, 541 N.W.2d 742, 748 (1995); Robertson v. Magic

Valley Regional Medical Center, 117 Idaho 979, 980, 793 P.2d 211,

212 (1990)) while others have upheld it (Armstrong v. Best Buy

Co., 99 Ohio St. 3d 79, 788 N.E.2d 1088 (2003) (an Ohio supreme

court case including an excellent discussion of the continuing

viability of the open-and-obvious doctrine); Groleau v. Bjornson

Oil Co., 2004 ND 55, ¶¶15-24, 676 N.W.2d 763, 769-72 (N.D.

2004)).

Our supreme court has addressed the issue of whether to

abandon the doctrine in light of the operative comparative-fault

principles and has, so far, declined to do so. In Ward v. K mart

Corp., 136 Ill. 2d 132, 146, 554 N.E.2d 223, 229 (1990), a man

was injured when he left a K mart store carrying a large mirror

and ran into a pole outside the store's exit. The court held

that the no-duty rule for open and obvious dangers has fallen

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under "harsh criticism" but rejected plaintiff's contention that

the court should abandon the doctrine in light of comparative

negligence. See also Bucheleres v. Chicago Park District, 171

Ill. 2d 435, 455-56, 665 N.E.2d 826, 835-36 (1996) (holding that

swimmers who were injured while diving into Lake Michigan off of

a concrete wall were presented with an open and obvious danger

despite the park district's recent manipulation of the bottom of

the lake which made the lake much shallower in the area the

swimmers were diving); but see Bucheleres, 171 Ill. 2d at 463-68,

665 N.E.2d at 839-41 (Harrison, J., dissenting) (arguing in

support of other jurisdictions that, upon enacting comparative-

fault legislation, abandoned the open-and-obvious doctrine as a

complete bar to plaintiff's recovery).

Recently, in Blue v. Environmental Engineering, Inc.,

215 Ill. 2d 78, 101-08, 828 N.E.2d 1128, 1144-48 (2005), our

supreme court also addressed the open-and-obvious doctrine's

relation to the duty analysis in a premises-liability claim.

Although Blue dealt with a products-liability claim, the court

spent a great deal of time discussing the open-and-obvious

doctrine as it applies in premises-liability cases for purposes

of comparison to the products-liability claim before the court.

Because our supreme court continues to respect the

open-and-obvious doctrine as an exception to defendant's duty, I

concur in the majority's decision. However, our court may be

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following an analytically flawed approach to duty in premises-

liability actions.

Justice Harrison's dissent in Bucheleres recognized

that "[i]t is a harsh and unjust principle of law yielding

results that are often cruel, if not bizarre." Bucheleres, 171

Ill. 2d at 464, 665 N.E.2d at 840 (Harrison, J., dissenting).

In Groleau, a North Dakota Supreme Court case, Justice Maring

presents a compelling argument for the abolition of the doctrine

finding it inconsistent with that state's comparative-negligence

system. Groleau, 2004 ND ¶¶27-41, 676 N.W.2d at 772-76 (Maring,

J., concurring in part and dissenting in part). Maring argues

that rather than be a complete bar to recovery, the openness and

obviousness of a danger should be a factor for the jury to assess

in determining comparative fault. Groleau, 2004 ND ¶33, 676

N.W.2d at 773 (Maring, J., concurring in part and dissenting in

part). Both Justice Maring's opinion and Justice Harrison's

dissent note that in a framework of comparative negligence, the

open-and-obvious doctrine has no continued validity.

Justice Maring finds that allowing the open and obvious

dangers to function as a complete bar to plaintiff's recovery is

tantamount to applying discarded principles of contributory

negligence. Justice Maring recognizes that prior to enactment of

comparative-fault principles, how open or how obvious the danger

was irrelevant because under the common law a plaintiff's

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encounter with an open and obvious danger was a complete bar to

recovery. Under principles of comparative fault, how open and

how obvious the danger is should be considered in assessing the

comparative faults of the plaintiff and the owner of the

premises.

Relegating the open-and-obvious doctrine to a question

of fact to be weighed by the fact finder, rather than a complete

bar to recovery as a matter of law, seems more consistent with

our comparative-fault principles. Nonetheless, the doctrine

continues to apply in Illinois, and I concur as the majority has

correctly applied it in this case.

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