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Table of Contents

List of Forms by Chapter

Premises Liability

I. [1.1] Overview

II. The Elements of the Premises Liability Case

[1.2] The Duty of Reasonable Care

[1.3] Defining the Duty of Reasonable Care and the Duty To Protect Against Unreasonably Dangerous Conditions

[1.4] The Importance of Foreseeability and Notice

[1.5] Actual Notice

[1.6] Constructive Notice

[1.7] The Other Elements of the Premises Case — Breach of Duty and Causation

III. Open and Obvious Conditions

[1.8] Should the Proprietor Anticipate Harm?

[1.9] The Distraction Exception

[1.10] The Deliberate Encounter Exception

[1.11] Cases Decided Involving Open and Obvious Conditions

IV. The Duty of Reasonable Care and Specific Rules for Particular Fact Situations

[1.12] Water, Snow, and Ice

[1.13] The Natural Accumulation Rule

[1.14] The Contractually Assumed Duty and Voluntary Undertaking Theories

[1.15] Immunity for Residential Property

[1.16] Tracked-In Water — The Natural Accumulation Rule for Occurrences Inside the Premises

[1.17] Foreign Substances

[1.18] Defects in Sidewalks and Walkways

[1.19] Ingress and Egress

[1.20] Slippery Surfaces

[1.21] Uneven or Cracked Floor Surfaces

[1.22] Stairs and Steps

[1.23] Other Conditions

V. [1.24] Liability for Construction Site Accidents

[1.25] Construction Negligence and “Retained Control”

[1.26] Duties Stemming from Possession and Control of the Premises

VI. [1.27] The Impact of Building Codes, Statutes, and Ordinances

VII. The Voluntary Assumption of Duty Theory

[1.28] In General

[1.29] Nonfeasance and Misfeasance

VIII. Rules for Certain Categories of Plaintiffs

[1.30] Injuries to Trespassers

[1.31] Injuries to Patrons with Disabilities

[1.32] Injuries to Children

[1.33] Injuries to Firefighters or Police Officers While on Duty

IX. [1.34] Statutory Immunity for Property Used for Recreational Purposes

X. [1.35] Common-Law Contact Sports Immunity

XI. Governmental Entities as Landowners

[1.36] Statutory Rules and Immunities

[1.37] Claims Arising Out of Maintenance of Property — Duty of Ordinary Care for Intended Users

[1.38] Other Immunity Provisions — Public Improvements, Recreational Purposes, Supervision

[1.39] Effect of an Immunity for Negligent Conduct — Willful and Wanton Conduct Must Be Shown

XII. [1.40] Liability for Failure To Prevent Injuries from Third Parties

[1.41] Failure To Prevent Criminal Assaults

[1.42] Necessity of “Special Relationship” — Social Guest Is Not Sufficient

[1.43] Business Invitees and Assaults by Another Patron

[1.44] Criminal Assaults Outside the Business Invitee or Special Relationship Context

[1.45] Injuries Caused by Intoxicated Individuals

[1.46] Injuries from Negligent Conduct of Third Parties

XIII. [1.47] Which Parties Are Subject to Liability

[1.48] General Rule of Landlord Immunity

[1.49] Situations in Which the Landlord May Be Liable

[1.50] Common Areas

[1.51] Other Liable Parties

XIV. [1.52] Planning for and Allocating the Risk

[1.53] Indemnity Provisions

[1.54] Additional Insured Coverage

XV. [1.55] Investigating the Claim

[1.56] Types of Information the Proprietor Should Collect and the Plaintiff Should Seek

[1.57] Photographs and Video

[1.58] Diagrams and Measurements

[1.59] Statements from Witnesses

[1.60] Documentary Evidence

[1.61] Preserving the Evidence

XVI. The Illinois Court System and the Illinois Law Applicable to Personal Injury Claims

[1.62] Comparative Negligence, Joint and Several Liability, and Contribution

[1.63] Summary Judgment Practice

[1.64] Trial and Evidence Issues

[1.65] Resolving the Case

XVII. Appendix of Forms

[1.66] Sample Incident Report Form

[1.67] Sample Complaint

[1.68] Sample Answer and Affirmative Defense

[1.69] Sample Interrogatories from Plaintiff to Defendant

[1.70] Sample Request To Produce Documents from Plaintiff to Defendant

[1.71] Sample Interrogatories from Defendant to Plaintiff

[1.72] Sample Request To Produce Documents from Defendant to Plaintiff

Authors

Stuart N. Rappaport
Stuart N. Rappaport
Stuart N. Rappaport is a Senior Trial Attorney for the Law Office of Stuart Rappaport, in Chicago, a firm that practices civil defense litigation on behalf of Selective Insurance Co. insureds. His clients have included property owners and managers, retail establishments, contractors, architects and engineers, and restaurants and taverns, among others. His practice includes cases arising from construction and industrial accidents, premises liability accidents, transportation accidents, commercial disputes, and other civil litigation matters. He has an “AV — Preeminent” rating from Martindale-Hubbell, which is the highest possible ranking and is based on a peer review as to legal ability and ethics. He is a member of the federal trial bar and has been a member of the Illinois Association of Defense Trial Counsel, where he has been an instructor in the Trial Academy. He received his undergraduate degree from the University of Wisconsin — Madison and his law degree magna cum laude from the University of Illinois College of Law, where he graduated with several honors.
Joshua M. Rappaport
Joshua M. Rappaport
Joshua M. Rappaport is an attorney at MDR Law LLC, in Chicago. He practices all types of personal injury litigation on the plaintiff’s side for clients who are exclusively the victims of injuries caused by the negligence of others, including in cases involving premises liability, medical malpractice, products liability, motor vehicle collisions, construction accidents, and work injuries. He is responsible for many multimillion-dollar recoveries, and he was peer-selected as an Emerging Lawyer in 2024 by Leading Lawyers, representing the top practitioners in the field. He received his undergraduate degree from St. Norbert College in De Pere, Wisconsin, and received his law degree from the DePaul University College of Law, where he graduated magna cum laude with CALI Awards of Excellence in Tort Law and Trial Advocacy.

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Premises Liability (ARCHIVED 2021 EDITION)

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