Illinois appellate courts have uniformly held that there is an exception to the open and obvious danger doctrine — typically called the "deliberate encounter exception" — where the landowner could anticipate that the invitee would purposefully encounter the open and obvious hazard because, to a reasonable man in the invitee's position, the advantages of doing so would outweigh the apparent risks. See, e.g., La Fever v. Kemlite Co., 293 Ill. App.3d 260, 227 Ill. Dec. 828, 688 N.E.2d 309, 316 (1st Dist. 1997); Burse v. CR Indus., Inc., 288 Ill. App.3d 48, 53, 223 Ill. Dec. 698, 680 N.E.2d 431, 434-35 (2d Dist. 1997); Jackson v. Hilton Hotels Corp., 277 Ill. App.3d 457, 464, 214 Ill. Dec. 31, 660 N.E.2d 222, 226 (1st Dist. 1995); Stemen v. Avon Prods., Inc., 234 Ill. App.3d 300, 306, 175 Ill. Dec. 126, 599 N.E.2d 1140, 1144 (1st Dist. 1992); Flath v. Madison Metal Servs., Inc., 212 Ill. App.3d 367, 373, 156 Ill. Dec. 496, 570 N.E.2d 1218, 1223 (5th Dist. 1991). The genesis of this exception is RESTATEMENT (SECOND) OF TORTS 343A, cmt f (1965) which states that land possessors should anticipate harm to invitees "where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk."

In reviewing a court's grant of a motion in limine, a reviewing court should first consider whether the trial court properly applied the rules of evidence. ( Flath v. Madison Metal Services, Inc. (1991), 212 Ill. App.3d 367, 376.) If the court applied the law correctly, the reviewing court must then determine whether the trial court abused its discretion in granting the motion. Flath, 212 Ill. App.3d at 376.

On balancing the risk of harm against the burden of protection, we agree with the trial court's conclusion that defendant's management of the parking area involved an unreasonable risk of harm. The trial court's holding finds support in Flath v. Madison Metal Services, Inc. (1991), 212 Ill. App.3d 367, 570 N.E.2d 1218. There, the plaintiff was a truck driver who picked up a load from defendant and then attempted to secure the load while he was in the loading area of defendant's building.

The plaintiff has presented no evidence tending to show that Chicago Rawhide could foresee that Wheeling would not assist its employee or that the plaintiff would lose his job if he did not tarp the load without assistance. The plaintiff argues that the trial court's holding is inconsistent with the analysis in Flath v. Madison Metal Services, Inc., 212 Ill. App.3d 367, 374 (1991), wherein the Illinois Appellate Court, Fifth District, held that a landowner's loading area was dangerous. In Flath, the defendant's loading area was obstructed with debris, forcing the plaintiff to stand on his truck bed rather than on the ground while securing his load.

Id. Similarly, in Flath v. Madison Metal Services, Inc., 212 Ill. App.3d 367, 156 Ill.Dec. 496, 570 N.E.2d 1218 (1991), the Appellate Court of Illinois upheld the dismissal of a juror who informed the trial judge that he had prejudged the case. The court stated:

In order for a statement to qualify as a spontaneous declaration, the following three requirements must be met: (1) an occurrence sufficiently startling to produce a spontaneous, unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. ( People v. Zwart (1992), 151 Ill.2d 37, 46, 600 N.E.2d 1169, 1173; People v. Poland (1961), 22 Ill.2d 175, 181, 174 N.E.2d 804, 807; Flath v. Madison Metal Services, Inc. (1991), 212 Ill. App.3d 367, 376-77, 570 N.E.2d 1218, 1225.) The party offering the statement must establish that it meets these requirements ( Flath, 212 Ill. App.3d at 377, 570 N.E.2d at 1225), and the determination of whether they are met, depending on the particular circumstances of each case, is within the sound discretion of the trial court.

The Court notes that while Canam's argument that Plaintiff has not alleged facts suggesting that the truck needed to be tarped right away, that Plaintiff lacked the option of waiting until the alleged hazardous weather conditions subsided, and that Plaintiff had no reasonable option other than to climb onto the truck to tarp the load does not warrant dismissal of his negligence claim, proof of such facts after discovery may reflect on the degree - - if any - - of Adamson's comparative fault. See, Flath v. Madison Metal Services, Inc., 570 N.E.2d 1218, 1222 (Ill. App. Ct. 1991) (affirming jury verdict in favor of truck driver's negligence claim against owner of premises where accident occurred who was injured while securing load of steel on flatbed truck: "That plaintiff [truck driver] might have been able to secure his load from the ground on the passenger side of the trailer, or by driving the truck forward out of the building, may reflect on the degree of plaintiff's comparative fault, but does not make the obstruction any less dangerous"). --------

Furthermore, it has been held that the discharge of a juror is a matter within the trial court's discretion and prejudice must be shown to warrant reversal. (See People v. Silagy (1984), 101 Ill.2d 147, 171; Flath v. Madison Metal Services, Inc. (1991), 212 Ill. App.3d 367, 378.) In light of the fact that juror Buchanan was going to be absent for several days, the trial court did not abuse its discretion by discharging her and proceeding with the alternate since waiting for her return would have resulted in an unnecessary delay.

“It is incumbent upon the party offering the declaration to establish that it meets the requirements of [an] exception.” Flath v. Madison Metal Services, Inc., 212 Ill.App.3d 367, 377, 156 Ill.Dec. 496, 570 N.E.2d 1218 (1991); see also Tarshes v. Lake Shore Harley Davidson, 171 Ill.App.3d 143, 153, 121 Ill.Dec. 88, 524 N.E.2d 1136 (1988). Defendant failed to establish the necessary facts for the exception for statements against penal interest.

The principal issue before us is what type of duty, if any, Koppers owed plaintiff in the current circumstances. Whether or not a duty exists is a question of law ( Flath v. Madison Metal Services, Inc., 212 Ill. App.3d 367, 372 (1991)) and is therefore subject to de novo review. Illinois law defines the duty of one who controls the premises by identifying the status of the entrant, who is either an "invitee" or a "trespasser."