Illinois Courts Uphold 'Deliberate Encounter Exception' in Premises Liability Cases, Challenging 'Open and Obvious' Defense
Illinois courts are increasingly recognizing the 'deliberate encounter exception' in premises liability cases, which allows individuals to pursue claims even if they encountered a known or obvious hazard. This exception challenges the traditional 'open and obvious' doctrine, which often bars recovery if a danger was visible. The deliberate encounter exception applies when a property owner should anticipate that an individual will proceed to encounter a known danger because the advantages of doing so outweigh the apparent risk. Examples include a delivery driver crossing an icy loading dock or a tenant using a crumbling stairwell as their only route. The Illinois Premises Liability Act, 740 ILCS 130/2, establishes a single duty of reasonable care for landowners, abolishing the distinction between invitees and licensees. While the 'open and obvious' doctrine is rooted in common law, the deliberate encounter exception, drawing on Restatement (Second) of Torts § 343A and comment f, provides a pathway for plain...
