Attorneys for the entity responsible for the path argued that they had no legal notice of the problem. They also argued that even though the sign fell off, the pole was still "open and obvious." They argued that because no one else had run into the sign, that they were not totally to blame and that the bicyclist should have noticed the pole even if it did not have the sign on it.
The defense argued that the remaining pole was "open and obvious." The "open and obvious" defense is a common defense used by insurance defense attorneys to try and deflect blame from negligent property owners and deflect it onto injured people. This defense provides that a defendant has no duty to protect against a condition that is both open and obvious. The open and obvious doctrine can be a powerful defense if they can show the court that the defect really was both open and obvious to the bicyclist.
Keating Law engaged in extensive litigation in the case and hired an expert human factors expert. A human factors expert is someone who can explain how it can be difficult for a person - in this case a bicyclist - to see objects. In this case the human factors expert was able to explain that a dark colored vertical pole amid a background of dark colored vertical trees would be essentially camouflauged and difficult for anyone to notice. After three years of litigation the matter was resolved in a mediation with a retired judge as a trial in the Circuit Court of Cook County was approaching. Prior to the mediation there was no offer at all to resolve the case.
This settlement will allow the injured bicyclist funds to cover all of their medical treatment, cover their loss of a normal life during their recovery, and help them have a foundation to move forward with their life in the most positive way possible. This was a very deserving client and it was an honor to represent them during this difficult time.
