Fall Down Dark Stairs? Dayton-Area Appeals Court Says a Jury Should Decide

Published March 24, 2010 · Ohio Appeals Courts

You ask a store clerk where the restroom is. She points you to the back, you open the door you think she meant, reach for a light switch, and step through. There is no floor. You tumble down a flight of basement stairs and tear up your shoulder. When you make a claim, the store's insurer tells you the stairs were "open and obvious" and you should have looked down.

That is close to what happened to a customer at a Piqua shoe store two years ago, and earlier this month the Second District Court of Appeals, which hears appeals from Montgomery, Miami, Greene, Clark, Darke, and Champaign Counties, ruled that her case must go to a jury. The decision is Hissong v. Miller, 186 Ohio App.3d 345 (2d Dist. 2010), and it is a useful reminder that "open and obvious" is a defense, not a magic word.

What happened

In February 2008, Ms. Hissong visited a Z-Coil footwear store in Piqua. She asked to use the restroom, and the clerk said "of course" and directed her through a curtain to a door "to the left of the trellis" in the back room. Hissong had never been behind the curtain. She saw a closed door near the trellis and assumed it was the restroom. On the door was a small handwritten note asking that it be kept locked, and a hook-and-eye latch that, for reasons nobody could explain, was not fastened.

She opened the door about a foot and a half. It was dark inside, but she could see a light switch on the wall. She reached for the switch and stepped forward at the same time without looking down. The steps began immediately at the threshold, with no landing. She fell down the stairs and severely injured her shoulder.

The trial court in Miami County threw out her case on summary judgment, which is a ruling that no trial is needed because the facts are so one-sided. The court held that the stairs were open and obvious and that Hissong was negligent as a matter of law for stepping into the dark.

The "open and obvious" doctrine

Under Ohio law, a business owes its customers a duty of ordinary care to keep the premises reasonably safe and to warn of hidden dangers. But the business has no duty to warn of dangers that are open and obvious, because the danger itself is supposed to serve as the warning.

Insurers love this doctrine because when it applies, the case ends. There is no comparing fault, no jury, no trial. The question is not whether the injured person was careless; it is whether the hazard was objectively observable to a person using ordinary care.

The Second District said that question could not be answered against Hissong as a matter of law. The court noted that a plaintiff's failure to look down is not automatically decisive, and that the defense attorney at her deposition could not get her to admit she would have seen the stairs if she had looked. Judge Brogan framed the real question this way: "Do most people look down before stepping inside a restroom?" Reasonable people could answer that differently, the court said, and a door that opens inward onto a staircase with no landing may itself hide the danger. That is a question for a jury.

The "step in the dark" rule

The store's second argument was Ohio's step-in-the-dark rule. Under that rule, a person who deliberately steps from a lit area into total darkness without knowing what is there is generally considered negligent, because darkness is itself a warning.

The appeals court agreed the rule exists but held it did not decide this case. The rule raises only an inference of carelessness, and the inference does not apply when the circumstances suggest the step into the dark was reasonable. The court pointed to the most important fact: Hissong was following the directions of the store's own employee. As the opinion put it, "In this case, the appellant was led to believe the room she would be entering was a bathroom." A person who is told by the business where to go is entitled to assume she is not being sent into danger.

The court did agree with the trial judge on one narrower point, that no "attendant circumstances" distracted Hissong from the hazard, but that did not change the outcome. Summary judgment was reversed and the case was sent back for trial.

Why this decision helps injured people

Fall cases are among the hardest injury claims to win in Ohio, precisely because of the open-and-obvious doctrine. Hissong does not abolish the doctrine, but it shows how a well-prepared case gets around it.

Context matters. The same staircase might be open and obvious to an employee who uses it daily and hidden to a customer who was pointed toward it as a restroom. What the business told the customer, how the room was configured, and what the customer could actually see all go to the jury.

The business's own conduct matters. The note on the door and the unfastened latch show the store knew the door was dangerous. Evidence that the owner recognized the hazard and failed to secure it is powerful with a jury, and it is the kind of evidence that disappears if nobody photographs the scene and interviews the employees early.

Darkness is not an automatic defense. Being asked to walk into a dim or dark space at someone else's direction is different from wandering into it on your own.

What this means for you

If you were hurt in a fall at a store, restaurant, rental property, or other business in the Dayton area, do not accept the insurer's "open and obvious" letter as the final word. Whether a hazard was truly obvious depends on facts that have to be gathered: photographs of the exact spot, lighting conditions at the time, the layout, what employees said, and whether the business had prior complaints or its own warning signs.

Those facts are perishable. Stores rearrange, repaint, and repair. Employees change jobs. And the general deadline for filing an Ohio injury lawsuit is two years, as we explained in our post on Ohio's injury deadline. Our premises liability page explains what we look for in these cases.