If someone is injured on another’s property due to some hazardous condition or defect, that person may have a premises liability case against the landowner or some other person or entity responsible for the maintenance of the property.
Nevertheless, common defenses that a landowner may assert are that the hazard was open and obvious, the victim was partially negligent themselves (contributory negligence), and the victim assumed the risk.
Open and obvious
In this defense, the landowner contends that the defect was so apparent that anyone would have seen it as it was open and obvious. For example, if bright blue detergent were spilled on a bright white grocery store floor and a victim slipped and fell because of the detergent the grocery store would allege that the detergent puddle was open and obvious to the victim and they should have seen it to have prevented their fall.
Contributory negligence is another common defense that also accuses the injured party of contributing in part to their own injury.
In Illinois, there is what is known as a modified comparative fault system which falls under the general category of contributory negligence. Under this comparative fault system, if the injured party is over 50% at fault, then they are not entitled to any type of a monetary recovery. If the injured party is less than 50% at fault, then they may recover monetary damages.
As an example, if a jury found a car accident victim (Plaintiff) had braked too hard when they were rear-ended and that they therefore were 51% at fault, then the Plaintiff would receive $0.00 in monetary damages. However, if the jury only found the Plaintiff to be 40% at fault and they awarded $100,000.00 in damages, then the Plaintiff is entitled to receive $60,000.00 from that award.
Assumption of risk
Under the assumption of risk defense, there are three theories which can be asserted. The three theories are known as primary assumption of risk, implied assumption of risk and secondary assumption of risk. Under any of these theories, the plaintiff knows of the risk and voluntarily agrees to take that risk.
For example, if a plaintiff carpenter cuts their hand while using a table saw while they were tasked with building a home, the defense can argue that the plaintiff knew of the inherent risk of using a table saw and nonetheless assumed that risk. Another example is if the plaintiff was a roofer and was required to take additional safety precautions, but did not do so, then the defendant may assert that the plaintiff assumed the risk of being on the roof, by their failing to utilize the additional safety precautions. In this case, the defendant may use this failure to act safely as a way to mitigate the plaintiff’s ability to recover damages.