Superior Court Affirms New Trial in Zoo Injury Case Over Omitted Open and Obvious Jury Instruction

The Superior Court of Pennsylvania affirmed an order granting a new trial, as the jury was not instructed on the open and obvious doctrine and the verdict slip did not include a question on whether the at-issue condition was open and obvious.

The plaintiff was injured when he tripped and fell on a decorative boulder at a big cat exhibit at the zoo. The plaintiff alleged that the defendant was negligent in placing the boulder adjacent to the walkway. The defendant filed a motion for summary judgment, arguing that the boulder was an open and obvious condition. The trial court denied the motion for summary judgment, and the matter proceed to a jury trial. 

At trial, both the plaintiff and the defendant addressed the open and obvious doctrine, however, the trial court did not include any mention of the doctrine in the jury instructions or on the verdict slip. The jury determined that the defendant was negligent. 

After trial, the defendant filed a post-trial motion for relief, requesting a judgment notwithstanding the verdict or a new trial. In its post-trial motion, along with other issues, the defendant argued that the court erred in excluding the open and obvious doctrine from the jury instruction and verdict slip. In deciding the post-trial motion, the trial court reasoned that, as there was conflicting evidence as to whether the boulder was open and obvious, the issue should have been decided by the jury. The trial court explained, “its decision not to read the open and obvious instruction and to leave out the interrogatory on the verdict slip likely caused confusion in the minds of the jurors.” The trial court granted the post-trial motion and ordered a new trial.

On appeal, the Superior Court of Pennsylvania affirmed the trial court’s order. The Superior Court rejected the plaintiff’s argument that, as he was unaware of the boulder, it could not be open and obvious. The Superior Court held that the standard for the open and obvious doctrine was “whether the dangerous object is known or obvious,” which was a question of fact for the jury to determine. The Superior Court reasoned that the facts of the case presented a question to the jury as to “whether the boulder would have been recognized by a reasonable person while walking on the pathway.” The Superior Court ruled that “[a]s the jury was not instructed as to the standards to apply, nor provided an interrogatory as to whether the boulder was open and obvious, the trial court correctly found a new trial was warranted.” 

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