Hepler Broom, LLC

Stupidity Doesn’t Pay

November 26, 2019

We’ve all heard of, or even litigated, those cases where someone does something ridiculous on another person’s property, injuring him or herself in the process, then sues the property owner as if it was somehow the owner’s fault. Rest assured, Illinois’ Second District Appellate Court was having none of this in its recent decision in Lee v. Lee, 2019 IL App (2d) 180923. The decision is noteworthy not only because the court applied the open and obvious defense to an ordinary negligence case, but also because the court sua sponte held as a matter of law—based solely on the plaintiff’s outlandish conduct—that the defendant did not owe the plaintiff a duty, and that the plaintiff’s own contributory negligence was greater than 50%, both of which precluded any recovery for the plaintiff.

Background Facts

The plaintiff, Kun Mook Lee (“Kun”), and defendant, Young Rok Lee (“Young”), were members of the same church. Kun and the church’s pastor went to Young’s home one day and attempted to trim an overgrown tree limb on Young’s property. Young never asked for their assistance; in fact, he specifically asked them not to come because the limb was too large and too high, and trimming it would be too dangerous.

Nevertheless, the two men arrived at Young’s home and got to work. They began by fastening two small ladders together with wire to reach the dangerously high limb. Once constructed, Kun leaned the uber-ladder against the very tree limb to be cut, climbed the ladder, and proceeded to cut the limb. Not surprisingly, when the supporting limb fell, so did the ladder, and so did Kun.

Kun then sued Young for ordinary negligence. Young moved for summary judgment on an “open and obvious” defense only, and the trial court granted Young’s motion.

Appellate Court Decision

On appeal, Kun argued the open and obvious defense was not available to Young because Kun alleged ordinary negligence and not premises liability. But the appellate court found the distinction irrelevant and affirmed the trial court’s application of the defense because the complaint sounded in premises liability (i.e., Young was a landowner and Kun an invitee) and Young had a duty to protect Kun from dangers on Young’s property. But the dangerous “condition” as alleged was open and obvious to Kun: according to the court, no reasonable person would not have appreciated the obvious danger in tying two ladders together, placing the ladders against the very same tree limb to be cut, then climbing the ladders and cutting the limb. As such, the appellate court found summary judgment on Young’s open and obvious defense was appropriate.

But the court did not stop there. Sua sponte the court further held that even if the open and obvious defense did not apply, Kun’s negligence claim could not stand because the evidence warranted a finding as a matter of law that Young owed no duty to Kun. In making this finding, the court mentioned all four factors in Simpkins v. CSX Transportations, Inc., 2012 IL 110662 for determining if a relationship-induced duty exists, but it considered only the first factor—whether the plaintiff’s injury was reasonably foreseeable to the defendant—to reach its decision. After determining Kun’s injuries were not foreseeable to Young because they resulted from Kun’s own “freakish” and “bizarre” behavior, the court found as a matter of law that Young owed no duty to Kun.

And finally, for good measure, the court noted that even if the open and obvious defense was inapplicable, and even if Young owed a duty, Kun would still be precluded from recovery because it found, again as a matter of law, Kun’s actions went “well beyond” a showing of more than 50% negligence on Kun’s part.

In a litigation-crazed world, the Lee case is a much needed reminder that common sense still prevails in Illinois jurisprudence.

COVID-19 Updates

HeplerBroom LLC COVID-19 Response

HeplerBroom has been diligently working on its response and continuity plan to the COVID-19 pandemic in order to keep the health and safety of our employees, their families, and our clients as our top priority.

To help ensure everyone’s continued health and well-being, effective Tuesday, March 17, 2020, all attorneys and staff will be working remotely until March 31. This is an unprecedented and dynamic situation, and HeplerBroom is committed to observing governmental suggestions and requirements concerning public health while continuing to provide legal service second to none.

To ensure this, the firm has identified essential personnel in each office who will make certain that critical firm functions that cannot be done remotely continue to be handled. We have put in place protocol for those essential personnel to make sure they are keeping healthy per the CDC cleaning and sanitizing recommendations. All teams have back-up personnel and procedures that we will follow to make sure all deadlines are met and clients receive the same great service and work product that we have always been proud to provide.

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The firm has created emergency communication measures to communicate any changes to this plan to employees and are communicating on a regular basis with any and all new resources and helpful information during this uncertain time.

During these fluid and unpredictable times, HeplerBroom will continue its commitment to great service and results for our clients, all while keeping safe and healthy.

Wishing you and your families good health.