Illinois Representative Jack D. Franks (D - McHenry County) has introduced a Bill (HB 1441) that would amend the Illinois Premises Liability Act to eliminate a court's ability to decide that a landowner does not owe a duty to protect those coming on his/her premises against conditions that are open and obvious.

The Illinois Premises Liability Act states (in part) that "The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." A longstanding exception to this duty under Illinois common law (and in other jurisdictions nationwide) is that "a party who owns or controls land is not required to foresee and protect against an injury if the potentially dangerous condition is open and obvious." Rexroad v. City of Springfield, 207 Ill. 2nd 33, 44 (2003). This is known as the "open and obvious rule."

It is also well-established case law that the question of whether or not a duty exists is a question of law for the court to decide. Forsythe v. Clark USA, Inc., 224 Ill. 2nd 404, 411 (1991).

There are exceptions to the "open and obvious rule," however, Representative Franks' Bill seeks to limit the application of the rule by excluding it as something a court can consider it determining whether or not a landowner owes an entrant a duty by adding the following language to the Premises Liability Act:

"Whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, under Section 2-116 if the Code if Civil Procedure and shall not be considered with respect to any other issues of law or fact, including duty." (Emphasis added).

The proposed amendment would expose landowners to additional liability for open and obvious conditions, and make cases with these circumstances more difficult to defend.