Open, Obvious & Ohio

Ohio - Premises Liability

Key Points:

  • Early and thorough documentation of the open and obvious condition.
  • Background investigation that there were no distractions to the plaintiff.
  • Posture case for summary judgment

 

In Lang v. Holly Hill Motel., Inc., 2009-Ohio-2495, the Ohio Supreme Court held that the open and obvious doctrine may be asserted as a defense to a claim of liability arising from a violation of Ohio's basic building code.

The Ohio Supreme Court reaffirmed in Lang the rule that when a plaintiff is injured by an open and obvious danger, summary judgment is generally appropriate because the duty of care necessary to establish negligence does not exist as a matter of law.

The Ohio Supreme Court also declined to extend the doctrine of negligence per se to administrative rule violations, like building code violations. In doing so, the Court held that the plaintiff is responsible for his or her own decision to proceed through a known danger which is open and obvious regardless of administrative rule violations. The open and obvious doctrine remains in full force and effect in Ohio.

The Lang decision will affect practitioners in Ohio in the following ways:

First, Lang firmly re-establishes the application of the open and obvious doctrine. Despite the plaintiff's reasonable argument that a building code violation could form the basis of negligence, and be an exception to the open and obvious doctrine, the Ohio Supreme Court decided not only to reaffirm the application of the doctrine, but also its application in spite of building code violations.

Second, the Court seemingly finds more important the openness and obviousness of the hazard as opposed to whether or not the hazard was a result of an administrative violation. This clearly establishes the concept that the hazard itself serves as a warning to the plaintiff that abrogates any duty on the part of the premises owner to warn.

Third, Lang clearly establishes that courts can resolve premises liability cases on summary judgment if the open and obvious doctrine is applicable. Surely, the Ohio Supreme Court is sending messages to both trial and appellate courts that summary judgment is the more appropriate way of resolving matters involving open and obvious hazards.

Fourth, although the Court did not address the issue of attendant circumstances, the application of the rule in Lang may weaken the argument that attendant circumstances can serve as an exception to the open and obvious doctrine. Attendant circumstances include those conditions which would distract, divert or draw attention away from the hazardous condition, and in such circumstances, the open and obvious doctrine may not be applicable. However, building code violations may not be readily apparent and may very well be obscured. Such violations may not necessarily serve as an attendant circumstance circumventing the open and obvious doctrine.

Fifth, by suggesting that building code violations do not obviate the open and obvious doctrine, the Court seemingly opens the door for application of the open and obvious doctrine in the face of other types of administrative violations. Defense attorneys could, and perhaps should, argue that other administrative codes, such as OSHA and msha, should not preclude application of the open and obvious doctrine any more than the building code violations considered in Lang.

Finally, the Court draws attention to the openness and obviousness of the hazard as opposed to what may or may not have created the hazard. The focus of the analysis centers on the hazard and not its origin. Ohio practitioners must, therefore, posture premises liability cases involving the open and obvious doctrine for summary judgment at the earliest stages of the case. Depositions, written discovery and motion practice should be directed toward establishing the open and obvious condition without any attendant circumstance, and if applicable, requests for admission should be used to establish the fact that the claimant was otherwise not diverted, distracted or whose attention was drawn away from the alleged hazard.

Claims professionals should also posture their investigations, at the earliest stages, toward obtaining information and evidence supporting the open and obvious hazard.

The Ohio Supreme Court reaffirmed the force and effect of the open and obvious doctrine in premises liability cases. This represents a continuing trend by the Ohio Supreme Court and the appellate courts in Ohio in resolving premises liability cases, if applicable, through the open and obvious doctrine.

* Sam is a shareholder who works in our Akron, Ohio, office. He can be reached at (330) 255-0601 or sgcasolari@mdwcg.com.

Defense Digest, Vol. 16, No. 2, June 2010