Update: Comments from Marc Srodulski of Beverly & Pause were added to the story.
Calling the incident “freakish” and “bizarre,” an appeals court has rejected claims for recovery made by a man who injured himself doing yard work for a fellow church patron.
The 2nd District Appellate Court has ruled the dangers of the act, tying two ladders together and climbing 20 to 25 feet to cut a tree limb with an electric chainsaw, should have been obvious to the plaintiff as he began the task.
Additionally, Justice Joseph E. Birkett wrote in the 14-page decision earlier this month, the defendant and homeowner, Young Rok Lee, had no duty to protect the plaintiff, Kun Mook Lee, because his injuries resulted from “fantastic circumstances” and were not reasonably foreseeable.
“The conduct that Kun Mook engaged in here — tying two ladders together, placing the top ladder against the very limb that was to be cut, climbing the ladders with dress shoes on and a chainsaw in this hand, and, finally, cutting the limb that led to his fall constitute, as a matter of law, freakish, bizarre and fantastic circumstances,” the court wrote.
Kun Mook and his pastor, Seung Jang, showed up at Young Rok’s home on Oct. 11, 2015 with landscaping tools and the intent to cut a tree limb on the property. According to the opinion, Young Rok had not requested their assistance, and the other two had even been told specifically not to come.
Regardless, both Kun Mook and Young Rok assessed the task, initially saying the limb was too high and the job too dangerous. Kun Mook said it should be left to professionals. But after a short while, they were all assisting in an effort that involved tying two ladders together with wire and leaning them against the limb that was to be cut. Kun Mook volunteered to climb up and cut the limb, and only remembered cutting it, then falling. He sustained life-threatening injuries.
In September 2017, he filed a two-count complaint alleging negligence against both Jang and Young Rok, for failing to provide appropriate tools and safety equipment, failing to supervise the work and secure debris in the work area.
Kun Mook settled with Seung, whose insurance policy covered the incident. Young Rok answered the claims and raised two affirmative defenses — contributory negligence and that Kun Mook had a duty to look out for his own safety and avoid “open-and-obvious” dangers. Young Rok filed a motion for summary judgment, which Lake County Circuit Judge Diane E. Winter granted in July 2018.
Kun Mook argued on appeal that the court erred because the “open-and-obvious” rule only applies in product and premises liability cases, not ordinary negligence, which was his chosen theory.
But that isn’t true, Birkett wrote, citing the 2014 Illinois Supreme Court case Bruns v. City of Centralia, as well as several appellate cases that included Winters v. MIMG LII Arbors at Eastland LLC, a 4th District opinion from 2018; Crosson v. Ruzich, a 5th District opinion from 2018; and Farrell v. Farrell, a 3rd District opinion from 2016.
Bruns stemmed from a woman’s negligence complaint against the city of Centralia for failing to maintain a sidewalk where she was injured. The court ruled the open-and-obvious hazard exception applied to her claims. Winters involved a determination that a pile of snow was open and obvious and precluded liability in a negligence case.
The panel here also found that Kun Mook, in claiming several Illinois cases found the open-and-obvious rule didn’t apply in ordinary negligence cases, simply stated that conclusion as fact without explanation and thus forfeited the argument.
Birkett wrote that while landowners like Young Rok have a general duty to protect invitees to their property, such as Kun Mook, that duty does not extend to open and obvious hazard. And the situation surrounding the tree limb was such a hazard.
“We fail to understand how any reasonable person could not have appreciated the open-and-obvious danger of tying two ladders together and placing those ladders against a tree limb 20 to 25 feet above the ground, the very limb that he was attempting to cut down,” the court wrote.
The tribunal added that two exceptions to the open-and-obvious rule — that the injured party was distracted or that the advantage of seeking the danger outweighed the risk — did not apply here.
The court noted a relationship-induced duty in such a case is the sum of four things: How foreseeable the injury is, how likely it is, the burden of guarding against the injury and the consequences of placing that burden on defendant. The first of those factors, however, does not apply when an injury results from “freakish, bizarre or fantastic circumstances,” the court wrote, citing the 2012 high court opinion in Jane Doe-3 v. McLean County Unit District No. 5 Board of Directors.
This injury was all of those things, Birkett wrote.
Finally, the court wrote, the doctrine of contributory negligence, in which a plaintiff could not recover if deemed at all liable for an injury, was abolished in 1981 and replaced in 1986 with comparative fault, which moved that guideline to anything above 50%.
Here, the justices wrote that, if nothing else, they would find Kun Mook more than 50% liable for the injuries, and thus he could not recover.
“Here, after initially looking at the tree limb, Kun Mook immediately said that the work should be left to professionals because the tree limb was too large and too high and the work would be dangerous,” the court concluded.
“Nevertheless, he marched on in the face of that danger, climbing the ladders while wearing dress shoes and carrying a chainsaw. Then he proceeded to cut the limb, against which the top ladder was leaning. As a matter of law, we find that these actions go well beyond a showing of more than 50% liability.”
Michael M. Cushing, of Cushing Law Offices, represented Kun Mook.
He could not be reached for comment.
Marc Srodulski, of Beverly & Pause, represented Young Rok in the case.
“We're very pleased that the appellate court affirmed Judge Winter's grant of summary judgment and upheld the longstanding principles of the open-and-obvious doctrine in the face of both premises liability and ordinary negligence cases," Srodulski said.
The opinion was issued Sept. 3.