Open, Obvious and Not So Obvious

Key Points:

  • Trial court determined that a tenant was not entitled to judgment because the lack of a handrail on the basement steps constituted an open and obvious danger.
  • Court of Appeals reverses because negligence per se is an exception to application of the open and obvious doctrine.

 

In McHugh v. Zaatar, 2015 Ohio App. Lexis 128 (Ohio Ct. App. Jan. 20, 2015), the Ninth District Court of Appeals reversed summary judgment in favor of a landlord in a dispute with a tenant. The tenant sued the landlord for, among other things, personal injury as a result of a fall down basement steps that lacked a handrail. The landlord had ignored the tenant’s request to install a handrail. Based upon the record, the trial court granted summary judgment, concluding that the lack of a handrail on the basement steps constituted an open and obvious danger.

In Ohio, to recover on a negligence claim, the plaintiff must prove that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. The existence of a duty is fundamental to establishing actionable negligence. The determination whether a duty exists is a question of law for the court.

The “open and obvious” doctrine under Ohio law involves an objective test wherin the plaintiff’s conduct is immaterial. The fact that the plaintiff was distracted by other conditions or simply did not notice the condition, which are matters relating to the plaintiff’s subjective state of mind, are immaterial to the application of the “open and obvious” doctrine. If the condition which caused the plaintiff’s injury is an “open and obvious” condition, then the reasons the plaintiff failed to notice or discover it are irrelevant. It is irrelevant that the plaintiff was looking elsewhere. It is irrelevant that the plaintiff was distracted. It is irrelevant that the plaintiff was pushing a cart or carrying something. It is irrelevant that the plaintiff was careless. The issue is whether the condition was one that the plaintiff could have discovered by ordinary inspection.

In McHugh, the tenant had argued that the lack of a handrail violated the Ohio Revised Code and constituted negligence per se—an exception to the open and obvious doctrine.

In reversing summary judgment, the Ninth District Court of Appeals held that:

… negligence per se is an exception to the open and obvious doctrine. If Tenant proved negligence per se, then the open and obvious doctrine would not act as a bar to her claim (citations omitted).

The Court of Appeals noted that the tenant argued in her brief in opposition to the landlord’s motion for summary judgment the applicability of the Revised Code section requiring compliance with building, housing, health and safety codes that materially affect health and safety, and the making of all repairs reasonably necessary to keep the premises in a fit and habitable condition. R.C. 5321.04(A). Before the trial court, the tenant supplemented her brief in opposition with an affidavit by a city building official stating that the landlord’s failure to install a handrail was a violation of a local building and safety code.

The Court of Appeals recognized that, in Ohio, violations of R.C. 5321.04 constitute negligence per se and that negligence per se is an exception to the open and obvious doctrine. Therefore, it reversed and remanded the matter to the trial court to consider the claim of negligence in the first instance.

There are five takeaways for practitioners and claims professionals in evaluating similar cases in Ohio. They are as follows.

First, define the parties in the case. The McHugh case involved a landlord/tenant dispute controlled by statute, which lent itself to the negligence per se exception to the open and obvious doctrine.

Second, if a statute is applicable to your case, determine whether, indeed, the statute was violated. If there has been no violation of a statute, negligence per se does not apply.

Third, be prepared to argue against the very applicability of negligence per se. The negligence per se doctrine has its own requirements that must be met.

Fourth, don’t put all of your eggs in the “open and obvious” basket. Be prepared to argue other premises liability defenses, such as the “notice” doctrine, the “trivial imperfection” doctrine, the “step in the dark” doctrine and others.

Fifth, be prepared to vigorously defend the application of the open and obvious doctrine as more Ohio courts are finding exceptions thereto. This may require more detailed depositions and greater use of expert testimony to derail the exceptions, including the negligence per se exception that the McHugh court used to reverse summary judgment.

*Sam, the managing attorney of our Cincinnati, Ohio office, can be reached at 513.372.6802 or sgcasolari@mdwcg.com.

Defense Digest, Vol. 21, No. 1, March 2015

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.