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Davis v. Gabriel12/11/1990
lusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances. [Emphasis added.]
Illustration 5 to Section 343A reads:
A owns an office building, in which he rents an office for business purposes to
B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.
Thus, despite the obviousness of the danger, a jury could find that a possessor of land breached a duty to invitees if (1) the possessor could have reasonably foreseen that invitees exercising due care would be injured by the condition of the land and (2) that risk made it unreasonable for the possessor not to take certain precautions. Whether a particular precaution would be required depends on such factors as the expense of the precaution, the probability of harm, and the probable extent of harm. See Ward v. K Mart Corp., 136 Ill. 2d at , 554 N.E.2d at 226-27.
We emphasize that the conduct of the specific invitee who is the plaintiff in the lawsuit does not affect the duty of the possessor of land. The scope of the duty is determined by reference to the foreseeable behavior of reasonably careful invitees, considered as a class. The negligence of the particular invitee is relevant only for purposes of reducing recovery under comparative negligence principles. See Ward v. K Mart Corp. In particular, when the possessor has breached a duty to the invitee, we do not treat "assumption of the risk" -- the purposeful encounter of a known danger -- as a complete bar to recovery; in that context "assumption of the risk" is merely a characterization of comparative negligence of the invitee. See .
We are not suggesting that the contractor necessarily violated a duty to Davis. We are not even holding that Davis put on prima facie proof of all the elements set forth in Sections 343 and 343A of the Restatement as necessary to establish a claim of negligence. The only issue before us with respect to the contractor's liability is whether Davis's knowledge of the risk necessarily bars recovery against the contractor. We hold that it does not.
Finally, Gabriel contends that an alternative ground will sustain the directed verdict. She points out that Davis failed to prove that a judgment against the contractor would have been collectable. We need not decide whether Davis needed to prove the collectability of a judgment against the contractor in order to succeed on his legal malpractice claim. The district court had prohibited Davis from introducing evidence of collectability, finding such evidence unnecessary. Because it had made that prior ruling, the district court rejected Gabriel's collectability argument as a ground for granting a directed verdict. We agree with the district court that in these circumstances it would be unfair to grant a directed verdict on that ground, even if Gabriel is correct that Davis had the burden of proving collectability.
Our reversal of the judgment makes it unnecessary to address Davis's other contentions. For the above reasons, we reverse the district court's judgment on a directed verdict and remand for a new trial.
IT IS SO ORDERED.
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