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An “open and obvious condition” does not negate an owner’s duty to keep a premises reasonably safe from ice/snow conditions for business invitees.

July 1, 2019
Foreman v. Two Farms, Inc., No. K17C-01-009 JJC, 2018 Del. Super. LEXIS 355 (Super. Ct. Aug. 16, 2018)

The plaintiff claimed she fell on ice and snow on a sidewalk at a Royal Farms location. Upon filing a motion for summary judgment, the defendant property owner submitted a photograph depicting the open and obvious icy conditions and relied upon the testimony of a witness to this effect. The defendants cited several cases to support their argument that a possessor of property has no duty to either warn OR protect invitees from open and obvious conditions. The court found those cases distinguishable because: (1) none involved icy conditions on the sidewalk of a premises open to business invitees; and (2) most cases only address the duty to warn of a condition. The court stated that “an open and obvious condition does not obviate a landowner’s duty to keep its premises reasonably safe for business invitees.” And, on the issue of open and obvious as to duty to warn, the court denied the motion, leaving it to the jury to decide. An issue of fact existed because, although the photograph provided “strong evidence” the ice/snow was open and obvious, the plaintiff’s testimony that she did not see it presented evidence to the contrary. Motion denied.


Case Law Alerts, 3rd Quarter, July 2019

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