Thursday, February 25, 2021

The "Open and Obvious" Defense In Pothole and Roadway Defect Bicycle Crash Cases

Far and away the most common types of cases we handle as bicycle law attorneys involve collisions between motor vehicles and bicyclists where the driver of the motor vehicle is at fault. Common examples of this are doorings, right hook crashes, left hook crashes, failure to give the bicyclist 3-Feet when passing. However, a large number of the cases Keating Law Offices has handled involve bicyclists who were injured when their bicycle hit a defect in the roadway and they crashed.

Illinois law on these types of cases is very, very fact specific. has previously delved into the crucial Illinois Supreme Court Case of Boub v. Wayne County which holds that for a bicyclist to hold a municipality (think city, town county, etc.) the bicyclist has to show that they were on a section of the road way where a bicyclist was not only permitted but also intended. An example of a roadway where bicycles are both intended and permitted would be a roadway where there is marked bike lanes or even signs indicating plans for bicyclists on that roadway.

The attorneys at Keating Law Offices also have a long history of representing bicyclists injured in crashes where a problem with the roadway caused the crash. When a road defect, such as a pothole or a hazard within a construction zone, causes the crash the at-fault parties often argue that even though there was a defect, and even though they may have put the defect in the roadway, that the bicyclist should have "watched where they were going." This defense is known as the "open and obvious doctrine." This doctrine provides that a defendant has no duty to protect against a condition that is both open and obvious. The open and obvious doctrine can be a powerful defense if they can show the court that the defect really was both open and obvious to the bicyclist. However, there are a number of elements for cyclists to consider when faced with this defense.

For a condition to be open and obvious, the risk caused by the condition needs to be apparent to a reasonable person exercising ordinary perception and judgment. This essentially means that would a regular person under regular circumstances see what is in the roadway? The doctrine essentially puts the burden on us cyclists to take care to avoid any obviously dangerous conditions that appear risky to your average person. The doctrine prevents a cyclist from suing someone responsible for a dangerous condition when the cyclist knew that the condition existed and knew that the condition was dangerous before that condition injured the cyclist.

Much of the Illinois law regarding the open and obvious doctrine has developed through cases that involved people who trip while walking. For example, the doctrine can defeat the claim of someone tripping over a sidewalk defect that is clearly marked with a hazard cone or bright spray paint. Or someone who tries to sue a grocery store for slipping on a bright yellow lemon on a dark black floor mat might lose their lawsuit because of the open and obvious doctrine.

Reasonable cyclists encounter the world differently than someone walking. The perception of road conditions of someone riding at 10 to 12 miles an hour is different than the perception of someone walking at 3 to 4 miles per hour. Thus, the opportunity to observe a small but dangerous road defect, like a pothole, is dramatically different while biking than while walking.

As attorneys, we investigate all of the factors that go into a reasonable person’s ability to perceive a condition when cycling. For example, in a pothole case we analyze whether the condition is open and obvious by asking:
  • How big is the pothole?
  • How deep is the pothole?
  • Where is the pothole?
  • What color is the pothole compared to the surrounding roadway?
  • Is something blocking the view of the pothole?
  • What were the lighting conditions around the pothole?
  • Was the pothole filled with material that disguised its dangerous size or depth?
Again, each of these cases are very "fact specific" and no two cases are really ever the same. The open and obvious doctrine only applies when a reasonable person can appreciate the risk involved. It’s not always possible to comprehend every risky condition, no matter how safe or reasonable we are while riding. Nevertheless, injured cyclists routinely face the open and obvious defense when a road defect causes a crash. The firm recently resolved a complicated case where the bicyclist suffered and injured collarbone after crashing on a defect during a road resurfacing project involving the Halsted Street bike lane. In that case we used an iconic Coke can to provide scale and contrast to depict the height of a defect that otherwise blended into the roadway at first glance. 

It takes an experienced and well-qualified attorney to help fight back against the open and obvious doctrine to protect your case from being thrown out of court. Keating Law Offices attorneys are available for a free consultation to discuss any claim today.