Throwback Thursday on the Open and Obvious Doctrine and a Ruling by the Newly Appointed Chief Justice of the Illinois Supreme Court, P. Scott Neville, Jr.

Steve Judge
Sep 18
3 min read

The Illinois Supreme Court recently announced that Justice P. Scott Neville, Jr. will become the Court’s 123rd Chief Justice on October 26, 2025. That news prompted me to revisit a case I argued before him when he sat on the First District Appellate Court, as part of a three-judge panel with Justices Hyman and Pucinski.

The case was Santi v. Village of Winnetka (2018 IL App (1st) 170360-U). It stemmed from a September 2013 incident in which the plaintiff tripped over a 12-inch long, 3-inch wide, 6-inch deep hole in the upper deck of the Village’s Hubbard Woods Parking Garage. She claimed the defect was not readily visible and caused her fall.

The Trial Court: A Win for the Defense

The Village moved for summary judgment on two independent grounds:

No notice. The Village had no actual or constructive notice of the defect as required under §3-102 of the Tort Immunity Act.
Open and obvious. Even if the defect existed, it was the type of condition that an ordinary pedestrian exercising reasonable care would have observed and avoided.

The trial court agreed, granting summary judgment for the Village. Judge O’Hara held that the defect was open and obvious as a matter of law and that no exception applied. The court therefore found it unnecessary to reach the Village’s notice defense.

The Appeal: A Reversal

On appeal, plaintiff argued that factual disputes remained as to whether the defect was truly “open and obvious". The panel agreed, reversing summary judgment. Justice Hyman authored the order, with Justice Neville concurring. The court held that photographs and testimony created a fact issue on the visibility of the defect, precluding a legal determination at summary judgment.

The panel’s reasoning highlighted the tension between the objective standard for open and obvious conditions (what a reasonable person exercising perception, intelligence, and judgment would see) and the factual question of whether this particular defect met that standard.

The Defense Argument

Our defense brief emphasized that the defect was clear and defined, plainly visible to any reasonable pedestrian looking where she was walking. The plaintiff herself admitted she was focused on finding the stairwell, not on watching the ground. Under Illinois law, self-distraction is not enough to defeat the open and obvious rule.

We relied on precedent such as Bruns v. City of Centralia (2014 IL 116998), where the Supreme Court reaffirmed that open and obvious conditions preclude liability absent a valid exception. Other authorities — from Choate v. Indiana Harbor Belt R.R. (2012 IL 112948) to Sandoval v. City of Chicago (357 Ill. App. 3d 1023 (2005)) — supported treating this as a legal question, not a factual one.

Takeaways for the Defense

Framing the defect matters. Courts are more likely to find “open and obvious” as a matter of law when the condition is clearly defined and objectively visible. Photographs, measurements, and testimony should be used to frame the condition as unmistakable.
Notice defense was to the detriment of the Open and Obvious defense according to the Appellate Court. The Appellate Court found that regular inspections by a Public Works employee (even though he was driving in his vehicle rather than walking the lot, an important distinction that I felt the Appellate Court failed to acknowledge) undermined the Open and Obvious defense.
Summary judgment standards are evolving. While Illinois law allows courts to rule as a matter of law on open and obvious conditions, appellate panels increasingly lean toward sending these disputes to juries. Defendants must anticipate fact-heavy analysis on visibility and distraction exceptions.

Looking Back

Arguing before then-Justice Neville was a reminder that appellate panels approach these issues with rigor. He asked thoughtful and probing questions during argument. While I continue to respectfully disagree with the panel’s reversal, particularly on how the open and obvious doctrine should apply under the Tort Immunity Act, and how an employee regularly driving a lot differs from what an individual walking the lot would view as open and obvious, the case underscores the importance of crafting a strong record and anticipating how appellate courts may perceive “factual disputes” in what seem like straightforward defense cases.

As Chief Justice, Justice Neville will undoubtedly bring that same thoroughness to the Supreme Court. For municipal defense practitioners, the lesson remains: prepare your case as if every crack in the pavement may end up before the state’s highest court.