Summary Judgment for Defendant in Negligence Action Where Hazard was Open and Obvious- Deliberate Encounter Exception Did Not Apply in Swearingen v. Momentive Specialty Chemicals

The Illinois Appellate Court recently examined a landowner’s duty to warn visitors of an open and obvious hazard in Paul T. Swearingen v. Momentive Specialty Chemicals, Inc., No. 11-2088 (December 7, 2011). The personal injury claim examines whether a company and its employees owed a duty to a truck driver to warn him against the danger presented by a low hanging fire extinguisher system.

In March 2010, the plaintiff, Paul Swearingen, was working as a tanker truck driver for Transport Service Co. During the course of his employment, Swearingen delivered a tank of chemicals to a Momentive Specialty Chemicals facility located in Carpentersville, Illinois. After parking his truck in Momentive’s unloading bay, one of the Momentive employees asked Swearingen to open his truck’s dome.

Swearingen reports that he climbed his truck’s ladder to access the dome opening, at which point he noted some low hanging piping located a few feet above the truck’s dome. The piping was bright red and was reportedly part of Momentive’s fire extinguisher system. Swearingen proceeded to climb on top of his tanker, at which point he struck his head on the piping and fell off his truck. Swearingen filed a personal injury lawsuit against Momentive in which he claimed the chemical facility was responsible for his injuries.

The basis of Swearingen’s complaint was that even though he could see the piping that Momentive should have still warned him of the risk associated with it. Swearingen also faulted Momentive for its failure to provide him with a fall-protection harness. However, Swearingen had undergone training during the course of his employment that specified that he needed to ensure he had three points of contact with his truck when climbing atop the tanker. Despite this prior safety training Swearingen was not wearing a harness, or any other safety protection.

In response, Momentive filed a motion for summary judgment claiming that Swearingen had no theory of liability because the hazard, i.e. the red piping, was open and obvious. The trial court granted the summary judgment, at which point Swearingen appealed the decision on the basis that the court should have applied a deliberate encounter exception. Under this exception, Swearingen claimed that Momentive should have foreseen that Swearingen would deliberately encounter the open and obvious hazard and therefore still had the duty to warn him of its danger and provide him with fall protection.

In its review of the personal injury lawsuit, the appellate court noted that generally a landowner like Momentive would owe a business invitee, e.g. Swearingen, a duty of care to ensure that the premises are safe. However, in this case the danger was open and obvious; the general rule is that a landowner is not liable for physical harm caused by a danger that is open or obvious.

The court rejected Swearingen’s argument that even though he was aware of the obvious danger from the piping, that Momentive still had the duty to warn him because it knew that he would deliberately encounter the hazard. To explain whey an invitee would knowingly encounter a known danger, Swearingen explained that the advantages of doing so outweighed the risks.

And while in such a scenario, the deliberate encounter exception would apply, the court held that there was no evidence that proved Momentive should have expected Swearingen to stand on his truck to open the dome lid, thus exposing himself to the danger. Since there was no way for Momentive to know that Swearingen would deliberately encounter the open and obvious hazard there was therefore no duty in this fact setting. So even though Swearingen contended there were issues of fact in the personal injury case, the court found that there was no duty and thus no liability. Therefore, the trial court’s entry for summary judgment was found to be appropriate.

Kreisman Law Offices has been handling Illinois construction site injuries for individuals and families for more than 35 years in and around Chicago, Cook County and surrounding areas, including Hazelcrest, Mount Prospect, Palatine, Long Grove, Chicago’s Bridgeport neighborhood, and South Holland.