A recent decision from the Illinois Appellate Court, Second District, reinforces an important principle for retailers and their insurers defending premises liability claims: when a potentially dangerous condition is open and obvious, a plaintiff’s awareness and creation of the condition and its associated risks may defeat a negligence claim, even where the plaintiff argues that a foreseeable distraction contributed to the accident.
In Stout v. Costco Wholesale Corp., 2026 IL App (2d) 250335, the Court affirmed summary judgment in favor of Costco Wholesale Corporation (Costco) in a lawsuit filed by a customer who tripped over a gas pump hose while refueling her vehicle. The Court concluded that the gas hose presented an open and obvious condition as a matter of law and that neither the distraction exception nor the circumstances of the case otherwise supported imposing a duty on Costco. The decision provides useful guidance for evaluating premises liability exposure involving visible obstacles, customer conduct, and the limits of a landowner’s duty of care.
The Incident
In March 2022, Plaintiff Terri Stout was refueling her husband’s pickup truck at a Costco gas station in Mettawa, Illinois. The truck’s fuel port was located on the driver’s side, next to the pump. Plaintiff noticed that the gas hose was unusually long and did not appear to retract, but she proceeded to insert the nozzle and pump gas.
Plaintiff testified that she wanted to return to the driver’s door to tell her husband the price of the gas but did not want to leave the fuel flowing unattended by walking around the rear of the truck. Instead, she attempted to step over the hose.
Plaintiff successfully cleared the hose with her right foot but caught her left foot on it while completing the next step and fell, sustaining injuries. Video footage of the incident showed Plaintiff lifting her right leg high to clear the hose before attempting to bring her left leg across it.
Plaintiff subsequently filed a negligence action, alleging that the hose’s mechanical retraction device was defective in violation of applicable Illinois State Fire Marshal regulations. She contended that Costco negligently failed to inspect the hose and warn her of the dangerous condition.
The Open and Obvious Doctrine: A Key Defense in Premises Liability Claims
Costco moved for summary judgment, arguing, among other things, that Plaintiff could not establish a defect or notice of a dangerous condition and that the hose was an open and obvious obstacle. The trial court granted summary judgment, and the Second District affirmed.
Under Illinois law, a landowner generally is not liable for injuries caused by conditions whose danger is known or obvious to invitees. A condition is open and obvious when both the condition and its associated risk would be apparent to a reasonable person exercising ordinary perception, intelligence, and judgment.
The Appellate Court emphasized that the hose was visible, that Plaintiff knew it was there, and that she understood it presented an obstacle. Her own actions demonstrated that awareness: she deliberately lifted her right leg high enough to clear the hose and then attempted to bring her left leg across it.
The Court also rejected Plaintiff’s argument that uncertainty about the precise height of the hose created a factual dispute requiring a trial. The video showed that she successfully stepped over the hose with her right foot, demonstrating her awareness of its position and the need to lift her trailing leg sufficiently to clear it. Her failure to complete the maneuver did not transform the hose into a condition that was not open and obvious.
Significantly, the Court noted that Plaintiff herself created the condition by inserting the nozzle into the vehicle’s fuel port and beginning to pump gas. That fact reinforced her knowledge of the hose’s existence and general characteristics, including the risk of tripping while stepping over it. The Court’s analysis illustrates the importance of evaluating not only whether a condition was visible but also whether the plaintiff appreciated the risk associated with encountering it. The Court found no genuine dispute on those points and held that the open and obvious issue could be resolved as a matter of law.
The Distraction Exception: Not Every Distraction Creates Liability
The open and obvious doctrine is not an automatic bar to liability. Illinois courts recognize exceptions, including the distraction exception, which may apply when a landowner has reason to expect that a visitor’s attention will be diverted so that the visitor will fail to discover or protect against an otherwise obvious danger.
Plaintiff argued that the distraction exception applied because she was concerned about getting the wet and dirty hose on her clothing. The Appellate Court disagreed.
The Court distinguished circumstances in which a plaintiff’s attention is diverted by another danger or by a task created by the defendant. For example, prior cases have recognized that carrying bulky merchandise purchased from a store or avoiding another hazard may divert a person’s attention in a reasonably foreseeable manner.
Here, however, Plaintiff’s concern about getting her clothes wet or dirty was a self-created distraction. She attempted to avoid touching the hose by stepping over it, a decision that required her to encounter the very obstacle she was trying to avoid. The Court concluded that Costco could not reasonably have been expected to foresee that particular response.
The Court therefore held that the distraction exception did not apply. The decision underscores that establishing a distraction alone is insufficient; the circumstances must support a finding that the distraction was reasonably foreseeable to the landowner.
Although the Court found that Plaintiff forfeited the issue of the deliberate encounter exception by not raising it before the trial court, the Court found the deliberate encounter exception inapplicable here because Plaintiff could have simply avoided stepping over the hose by walking around the vehicle, which would have only caused her a minor inconvenience.
Duty Analysis: Balancing Foreseeability, Risk, and Burden
The Appellate Court also conducted the traditional duty analysis required under Illinois law. Even when a condition is open and obvious, a court must consider whether the defendant nevertheless owed a duty of reasonable care under the circumstances.
The analysis weighs four factors: the reasonable foreseeability of the injury, the likelihood of injury, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant.
The Court concluded that the factors weighed against imposing a duty on Costco. First, because the hose and its associated risks were open and obvious, the Court found that both the foreseeability of injury and the likelihood of injury weighed strongly against imposing a duty. A reasonable person in Plaintiff’s position would be expected to recognize the obstacle and take appropriate precautions.
Second, the Court found that the burden of guarding against the risk would be substantial. Costco would effectively need to assign employees to warn customers against stepping over gas hoses and prevent them from doing so. Such a requirement would interfere with employees’ other responsibilities and impose an ongoing burden across Costco’s gas stations. Balancing these considerations, the Court held that Costco did not owe Plaintiff a duty under the circumstances.
Finally, because the open and obvious analysis was sufficient to affirm summary judgment, the Second District declined to address Plaintiff’s remaining arguments concerning the alleged defect and Costco’s notice.
Implications for Retailers and Insurance Carriers
Stout reinforces the significance of the open and obvious doctrine in defending Illinois premises liability claims. The decision demonstrates that a visible condition, coupled with evidence that the plaintiff actually recognized the obstacle and appreciated its associated risks, may support summary judgment even when the plaintiff ultimately fails to avoid the hazard.
The decision also highlights the limits of the distraction exception. A plaintiff’s explanation for encountering an obvious condition does not automatically establish a foreseeable distraction. Courts will examine whether the circumstances reasonably required the plaintiff to divert attention from the hazard or whether the distraction instead arose from the plaintiff’s own choices.
For insurers, the opinion underscores the importance of developing a clear evidentiary record concerning the physical condition, the plaintiff’s awareness, and the circumstances immediately preceding the accident. Video footage and deposition testimony may be particularly valuable when they demonstrate that a plaintiff perceived an obstacle and deliberately attempted to navigate around or over it.
The decision does not eliminate premises liability exposure whenever a condition is visible. Rather, it demonstrates how the open and obvious doctrine, the applicability of its exceptions, and the traditional duty factors must be evaluated together based on the specific facts of the case.
Practical Takeaways for Retailers and Insurance Carriers to Consider
For retailers, property owners, and their insurers, Stout offers several practical considerations:
- Preserve surveillance footage. Video may provide critical evidence of the condition, its visibility, and the plaintiff’s actions before the incident.
- Develop the plaintiff’s knowledge of the hazard. Deposition testimony should explore whether the plaintiff saw the condition, understood its general characteristics, and appreciated the risk of encountering it.
- Evaluate the distraction exception carefully. Determine what diverted the plaintiff’s attention, whether the distraction was reasonably foreseeable, and whether it arose from a task or circumstance created by the defendant.
- Analyze duty separately from comparative fault. A plaintiff’s conduct may provide evidence of awareness of a hazard, but the duty inquiry remains focused on the defendant and the applicable legal factors.
- Assess the burden of proposed safety measures. Where a plaintiff argues that additional warnings, employee monitoring, or protective measures were required, evaluate the practical burden and broader consequences of imposing that obligation.
Ultimately, Stout v. Costco Wholesale Corp. serves as a reminder that premises liability cases turn on the specific condition at issue, the plaintiff’s awareness of the associated risk, and whether the circumstances justify imposing a duty on the property owner. A well-developed factual record can be instrumental in establishing that summary judgment is appropriate under Illinois law.