It is common for customers to purchase large, bulky merchandise from mass retailers such as Kmart and Walmart. It is also common for shoppers to carry these purchases out of the building and into the store parking lot. This can be awkward at best; at worst, it may lead to serious injury because the items obscure vision, restrict range of motion, or otherwise prevent customers from avoiding dangerous situations. In the case of Ward v. Kmart Corp, the Illinois Supreme Court considers whether property owners are legally required to protect guests from injury in cases where customers are distracted by carrying large merchandise and thus fail to avoid hazardous conditions they had previously discovered.
The Facts
On October 11, 1985, Mr. Ward visited a Kmart store in Champaign, Illinois. On his way into the store, he walked past two five-foot-tall concrete posts that were located approximately 19 inches from the building’s exterior wall. He then entered through a customer door in the store’s Home Center. When opened, this door collided with one of the concrete posts and cleared the other by approximately four inches.
Mr. Ward spent half an hour shopping and purchased a large bathroom mirror that was approximately five feet long and one-and-a-half feet wide. After paying for the merchandise, he walked over to the same door through which he had entered. Because it was locked from the inside as a shoplifting deterrent, a clerk had to release the security lock so Mr. Ward could exit. His vision was obscured by the bulky mirror as he left the store, preventing him from seeing the concrete posts located immediately outside the doorway. Furthermore, the posts had not been visible from inside the store because the door was solid and contained no windows or transparent panels. Despite this, the clerk did not alert Mr. Ward to the hazards in his path. Similarly, there was no signage to warn customers about the posts.
After taking approximately one step outside of the Home Center’s customer door, Mr. Ward walked into one of the posts. He felt a substantial pain and “saw stars.” Because of the collision, Mr. Ward suffered a cut to his right cheek and partial vision loss in his right eye.
Following the accident, Mr. Ward acknowledged that he must have seen the posts when he entered the store. However, he did not make a conscious note of them and did not specifically recall their presence outside the customer door as he left the Home Center at the time of his injury.
Mr. Ward filed a lawsuit against Kmart Corporation alleging negligence (carelessness).
Negligence and the Rule of Open and Obvious Dangers
Illinois property owners have a duty of reasonable care toward guests on their property. To prove that a property owner was negligent, injured parties must demonstrate that the owner has a duty to protect them from injury. The injured party must then show the owner failed to uphold this duty, causing the injury. If injured parties are unable to prove the property owner has a duty to protect them, they cannot win a lawsuit.
Whether property owners have a duty to protect their guests from dangerous conditions depends on four factors: the reasonable foreseeability of the injury, the likelihood of injury, the extent to which preventing the injury is burdensome, and the consequences of imposing that burden on a property owner. However, property owners generally have no duty to protect against injury when a potentially dangerous condition is obvious—in other words, when the average person would recognize a situation as hazardous. According to Illinois law, property owners are not liable for injuries that occur when a person engages in activity where a known and obvious danger exists. Furthermore, Illinois law does not require property owners to warn guests in situations where the danger is so obvious that it is unreasonable to anticipate that guests will either ignore or fail to discover the hazard. Property owners are responsible for their guests’ injuries only in situations when they know (or should know) of dangerous conditions that are likely to cause harm, when they have reason to believe guests will not recognize the danger, and when they fail to exercise reasonable care to protect guests. Additionally, owners are legally able to maintain dangerous conditions on their property as long as they provide guests with an adequate warning of the hazard.
The Decision
In response to the lawsuit, Kmart Corporation filed a motion for summary judgment, arguing that the evidence was insufficient for a jury to find in Mr. Ward’s favor even if interpreted in the light most favorable to him. The trial court denied this motion and a jury found in Mr. Ward’s favor, awarding him damages. Kmart then moved for judgment notwithstanding the verdict, which was granted. (In other words, the judge overruled the jury’s decision because the evidence was so favorable to Kmart that a verdict in favor of Mr. Ward could not stand.) When granting this motion, the trial court said the posts at the Kmart store were not inherently dangerous and, therefore, the store had no duty to protect Mr. Ward from injury. Furthermore, Kmart had no reason to anticipate that Mr. Ward would be distracted while exiting the store. Finally, the distraction in question—carrying the mirror—was one that Mr. Ward created (not Kmart).
Mr. Ward appealed to the Illinois Appellate Court, where the appellate court affirmed the trial court’s decision. Similar to the trial court, the appellate court said Kmart could not have foreseen that Mr. Ward would both fail to see and forget about the post—an obvious hazard—as he exited the store.
Mr. Ward appealed once again, this time to the Illinois Supreme Court. In considering the case, the Supreme Court noted that there was only one relevant question to consider: whether Kmart had a duty to take reasonable care and prevent Mr. Ward from becoming injured by the concrete posts outside its store.
The Supreme Court concluded that, in most situations, Illinois property owners have no duty to protect guests in cases where a danger is obvious and/or when the guest is aware of the danger. The Court also concluded that property owners have no obligation to warn guests against known and/or obvious dangers. In other words, if a hazard is so clear that property owners can’t anticipate their guests failing to protect themselves, they have no duty.
However, the Supreme Court also noted that there are circumstances under which “precautions may be required,” even in the case of obvious dangers. Here, the Court looked to a comment from the American Law Institute’s Restatement (Second) of Torts, which summarizes United States common law. The relevant comment states that property owners have reason to anticipate their guests may be harmed by dangerous conditions when “the invitee’s attention may be distracted so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” The Supreme Court also noted that many U.S. courts had moved away from a universal application of the Rule of Open and Obvious Dangers, in which property owners are always absolved of responsibility for their guests’ injuries in the presence of an obvious hazard. Finally, the Court cited a number of Illinois cases in which courts had concluded that distractions imposed a duty on property owners to protect guests from injury.
The Supreme Court noted that seemingly harmless conditions could present “unreasonable danger” under certain circumstances. Therefore, the Court said the question in Ward v. Kmart was whether Kmart should have anticipated the posts becoming dangerous in certain situations, such as a customer becoming distracted from the danger or forgetting about it after only encountering it in passing.
In this particular case, the Supreme Court agreed with the lower courts that the post itself was not dangerous. The Court also agreed that Mr. Ward had seen the post upon entering the Kmart store. However, the Court disagreed that Kmart was unable to envision a situation in which customers’ vision could become obscured while carrying a bulky purchase through the door, thus causing them to forget about or be unaware of large concrete posts in their path.
The Supreme Court concluded that the circumstances in this case were reasonably foreseeable—in other words, Kmart could have predicted that customers would forget about posts they had seen while entering the store. Kmart also could have predicted that customers—even those exercising reasonable care for their own safety—could walk into the posts if their vision was obscured by merchandise they had purchased. Given that the posts were located outside of the Home Center entrance, it was especially reasonable for Kmart to assume customers would be carrying large, bulky items as they exited. The Court also said Kmart’s burden of protecting Mr. Ward and other customers from the danger of the posts would be minimal. For all these reasons, the Supreme Court reversed the lower court’s decision, noting that Kmart’s duty of reasonable care included anticipating situations in which customers would exit the Home Center with their vision obscured by bulky merchandise. Further, the Court ruled there had been sufficient evidence presented at trial to show that Kmart breached its duty to protect customers from injury. There was also enough evidence to show the breach caused Mr. Ward’s injuries. Therefore, the Supreme Court reinstated the jury’s verdict and instructed the Champaign County trial court to award damages to Mr. Ward.
Conclusion
This case has given rise to what is now known as “The Distraction Exception.” It is one of several exceptions to the Rule of Open and Obvious Dangers, which holds property owners accountable for injuries sustained by guests who encounter a clear hazard. The Distraction Exception applies in situations when external factors cause guests’ attention to waver in a way that prevents them from discovering an otherwise obvious danger. The exception also applies when these external factors make guests forget about a hazard they previously encountered, or when external factors prevent guests from protecting themselves against a hazard. In situations where the Distraction Exception is applicable, property owners can be held liable for injuries their guests sustain on the premises.