dissenting:
While performing his job, the plaintiff, a trash collector, slipped and injured himself when he walked on a piece of fiberglass refuse (called edge trim) which he knew to be dangerously slippery. A jury found the defendant premises owner, Kemlite, liable for the plaintiffs injuries, and the appellate court affirmed.
Although a premises owner is not ordinarily hable for injuries caused by an “open and obvious” hazard (Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-48 (1996)), the majority holds that the “deliberate encounter” exception to the open and obvious danger doctrine applies because Kemlite “could reasonably foresee an ‘economic compulsion’ [citation] imposed on the roll-off drivers to perform the work they were hired to do.” 185 Ill. 2d at 395. This “deliberate encounter” exception provides that a landowner may be liable for injuries sustained from open and obvious hazards when he should reasonably foresee that an entrant “will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” Restatement (Second) of Torts § 343A, Comment f, at 220 (1965).
While I have no objection to the majority’s formal adoption of the deliberate encounter exception, I disagree with the majority’s application of the doctrine here. Specifically, the majority holds that the deliberate encounter exception applies because Kemlite should have foreseen that the plaintiff was somehow economically compelled to traverse upon the dangerous trash. The facts in this case clearly reveal that the plaintiff was under no compulsion, economic or otherwise. Therefore, I respectfully dissent.
The plaintiff and other trash collectors testified that when refuse prevented them from performing their job safely, they would sometimes contact the Banner dispatcher. The dispatcher would then contact Kemlite and ask it to have the area around the compactor cleaned. Nothing indicates that the plaintiff would suffer adverse economic consequences if he did not deliberately encounter the debris on the ground. Indeed, past practice indicates that the trash collectors requested that Kemlite clean up the compactor site, and the collectors were never disciplined by Banner for making such a request. Rather, the collectors could, and did, avoid the danger by requesting that Kemlite clean the area around the compactor. Given that the plaintiff had a reasonable alternative available to him which he in fact availed himself of in the past, it strains logic and good sense to hold that he was under some compulsion to put himself in harm’s way. Consequently, Kemlite should not be required to foresee an illusory compulsion.
Moreover, the case to which the majority cites for support actually illustrates why the plaintiff in this case was not under any compulsion. In Keller v. Holiday Inns, Inc., 107 Idaho 593, 691 P.2d 1208 (1984), the plaintiffs worked at a hotel gift shop. When opening and closing the shop, the employees, as part of their jobs, were required to move and store a hazardous security gate. Because the employees had to handle this gate or lose their jobs, the Idaho Supreme Court held that the employer should have foreseen this economic compulsion. Keller, 107 Idaho at 595, 691 P.2d at 1210. Thus, the plaintiffs in Keller, unlike the plaintiff here, had no reasonable alternative to encountering the hazard.
Finally, finding a duty under the circumstances of this case is bad public policy. See Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987) (stating that whether a duty exists is also an inquiry shaped by public policy). Whenever a hazard is open and obvious, the danger is known to both the plaintiff and the defendant. Thus, the central inquiry is who, among the two parties aware of the risk, should bear the responsibility for injury. Where, as here, reasonable alternatives to encountering the hazard are available to the plaintiff, finding a duty makes the defendant responsible for the plaintiffs decision which was freely made. Consequently, I would find that Kemlite owed no duty to the plaintiff, and, thus, I would not reach the remaining issues in this case.