Fell Through an Unguarded Opening? The 'Open and Obvious' Defense Isn't Automatic (Hill v. Mullins)

Published April 27, 2017 · Ohio Appeals Courts

A homeowner in Miamisburg tore out the walls around the basement stairs during a renovation and left a hole in the floor, roughly four feet by three, with no railing, no caution tape, and no cover. A tile installer's assistant who had never been in the house walked around a wall behind the owner and stepped into it. She broke ribs and punctured a lung. The trial court threw her case out because the hole was "open and obvious." Three weeks ago, the Second District Court of Appeals in Dayton sent the case back for a jury, and its reasoning is a lesson for anyone who has fallen on someone else's property.

The "open and obvious" doctrine in one paragraph

Ohio premises law starts with a duty: a property owner must keep the premises reasonably safe for business invitees, meaning people invited onto the land for the owner's benefit, and must warn them of dangers the owner knows about. The doctrine that swallows that duty is "open and obvious." As the court put it, "if a danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises." The theory is that an obvious hazard is its own warning. I explained the doctrine, and how good investigation gets around it, in The 'Open and Obvious' Defense in Fall Cases.

Insurance companies love the doctrine because it lets a judge dismiss a case before a jury ever hears it. Hill v. Mullins, 2017-Ohio-1302 (2d Dist.), is about the limits of that shortcut.

What happened in Miamisburg

The Mullinses bought the house in January 2014 and gutted it. Early on they removed two walls and a doorway that had enclosed the basement stairs, leaving a third wall standing alongside the opening and a narrow floor-to-ceiling "short wall" between the front door and the hole. They put nothing around the opening.

On September 18, 2014, a tile contractor named Steve Walker came to give an estimate for a bathroom, with Anne Hill, his girlfriend and assistant, along to help. According to Ms. Hill, she followed Mrs. Mullins through the front door toward the back hallway while Mrs. Mullins talked and pointed out the work. As she stepped around the wall near the corner of the open stairs, her right foot went into the void. She fell onto the steps and then the basement floor. A forensic expert she retained measured the opening at 45 by 34 inches and concluded it was positioned immediately next to the wall that formed the walkway toward the bathroom. Mrs. Mullins told a different story, including that the two had already walked past the hole once.

The Montgomery County trial judge granted summary judgment for the homeowners in May 2016, reasoning that the hole was large, prominent, uncovered, and plainly in a house under construction, and that Ms. Hill "would have observed it if she had looked."

Why the appeals court reversed

Judge Froelich, writing for a two-to-one majority, did not quarrel with the idea that the hole was large or that it was visible from some vantage points. The flaw was in the question the trial court asked. The test for open and obvious is objective, and as the court explained, "The relevant issue is not whether an individual observes the condition, but whether the condition is capable of being observed." But capable of being observed by whom, and from where?

The only photograph in the record was taken from the back of the house looking toward the front. From that direction the hole was, as the trial court said, prominent. Ms. Hill did not come from that direction. On her version, which the court had to accept at the summary-judgment stage, she came through the front door and around a wall that ran alongside the opening, with a second "short wall" between the door and the hole. The court held that "the answer depends, at least in part, on the direction from which Hill approached the hole." If walls hid the opening until the moment she stepped around the corner, it was not open and obvious to her, no matter how obvious it looked from the kitchen. That is a question for a jury.

The dissenting judge did his own geometry and concluded that at least part of the opening would have been visible for several steps. The majority's response was essentially that geometry on a disputed record is the jury's job, not the court's.

What the court did not accept

The decision is honest about a losing argument, and so should we be. Ms. Hill also argued that "attendant circumstances" took the case out of the doctrine: she was distracted because the homeowner was walking ahead of her, talking and gesturing. The court rejected that. Attendant circumstances must be unusual, and they "do not include regularly encountered, ordinary, or common circumstances." Following someone through a house while they talk is ordinary. I discussed what does qualify in How 'Attendant Circumstances' Defeat the Open-and-Obvious Defense. The lesson is that the winning argument was about sight lines, not distraction.

The evidence that decided this appeal

Here is the part I want every fall victim to take to heart. The court noted that the parties submitted no photograph taken from the direction Ms. Hill approached and no drawing of her path. The only picture pointed the wrong way, and the case very nearly died because of it.

When I take a fall case, the first thing we do is photograph the hazard from the client's vantage point, at the client's eye level, along the exact path the client walked, in the lighting that existed at the time. We measure the hazard and everything around it. We identify what was blocking the view and whether the owner had done anything to mark the danger. Where the property is being renovated, we document the absence of barriers, tape, or warnings, and we look at whether permits and codes required them. A single photograph from the right angle is often the difference between a jury trial and a dismissal.

What this means for you

Hill v. Mullins does not say the homeowners are liable. It says a jury, not a judge, will decide whether the hazard was obvious from where Ms. Hill stood, and the case now goes back to the trial court for that purpose. For anyone who has fallen through an unguarded opening, down unmarked steps, or into a hazard hidden by a wall, a display, or a corner, the decision confirms that "you should have seen it" is an argument, not an answer. Whether it wins depends on evidence gathered early and from the right spot.