Who Dug the Hole Matters: Contractors Can't Hide Behind 'Open and Obvious'

Published December 31, 2010 · Ohio Appeals Courts

A utility crew digs up the strip of grass between your sidewalk and the street, fixes a water main, and fills the hole back in with loose gravel. A few days later you step off the sidewalk to see whether they have reseeded, your foot slides into the fill, and your leg sinks three feet. That is what a Cincinnati-area homeowner says happened to her, and when she sued, the city's answer was the one property owners use in nearly every fall case in Ohio: the hazard was open and obvious, so we owed you no duty.

On December 22, 2010, the First District Court of Appeals said the city could not use that defense, at least not without first proving something it had not bothered to prove. The decision, Vonderhaar v. Cincinnati, 191 Ohio App.3d 229, 945 N.E.2d 603 (1st Dist. 2010), is a good illustration of a rule that too few injured people know about: the open-and-obvious defense belongs to owners and occupiers of land, and nobody else.

The facts

In August 2005, the Greater Cincinnati Water Works dug a hole roughly four feet by five feet and four feet deep in the tree lawn in front of Joan Vonderhaar's home in Cheviot, a separate municipality, to repair a water main. When the work was done, the crew backfilled the hole with four yards of bank-run gravel, a loose mix of sand and gravel. There was one cone near the street. There was no warning tape and no signage.

Several days later, Mrs. Vonderhaar walked over to see whether the site had been seeded. From the sidewalk, her right foot slipped off the edge and into the gravel. Her right leg sank about three feet while her left leg stayed on the sidewalk, pulling her body apart. It took two rescue squads to get her out. She claimed injuries to her right leg, left knee, lower back, and heart.

She sued the city for negligence and public nuisance. The city moved for summary judgment on one ground only: that the filled-in hole was an open and obvious danger she was aware of, so the city owed her no duty. The trial court agreed and dismissed the case.

The rule: open and obvious protects owners and occupiers

The court of appeals reversed on the negligence claim, and the reasoning is worth following closely.

The open-and-obvious doctrine says that an owner or occupier of property owes no duty to warn people entering the property about dangers that are obvious. The theory is that the obviousness of the hazard is its own warning. Applied to a store or a homeowner, it can end a case as a matter of law, as I discussed in last month's post on store falls.

But the Ohio Supreme Court decided nearly twenty years ago that the doctrine does not stretch to everyone who creates a hazard. In Simmers v. Bentley Construction Co., 64 Ohio St.3d 642 (1992), a contractor had left a hole in a railroad bridge that the public used as a walkway, and a young man fell through it. The contractor argued that the hole was open and obvious. The Supreme Court held that "an independent contractor who creates a dangerous condition on real property is not relieved of liability" by the doctrine, because the doctrine grows out of a landowner's control over who enters the land. A contractor with no property interest is judged under ordinary negligence rules instead. The obviousness of the hazard still matters under those rules, but it goes to the plaintiff's comparative negligence, which a jury weighs, rather than wiping out the defendant's duty.

In Vonderhaar, the homeowner produced a real-estate lawyer's affidavit, based on the title records, stating that the tree lawn belonged either to the City of Cheviot or to her, and not to Cincinnati or its water works. If that was right, Cincinnati was in the same position as the contractor in Simmers: a party doing work on someone else's land. The court of appeals held that before a defendant can claim the full open-and-obvious defense, the record must show it was an owner or occupier of the premises. The city had not shown that, had not even addressed it, and so had failed to carry its burden on summary judgment. The negligence claim was sent back for trial.

Comparative fault, not a closed door

The practical difference between the two frameworks is enormous. Under the open-and-obvious doctrine, if the judge decides the hazard was obvious, the case is over. Under ordinary negligence, the question becomes whether the contractor or utility acted reasonably in creating and leaving the hazard, and whether the injured person was careless too. Both questions go to a jury, and under Ohio's comparative negligence rule, the injured person recovers unless her share of fault exceeds fifty percent.

For a person hurt by a backfilled trench with one cone and no tape, that is the difference between no case and a real one.

A note on suing a city

Because the defendant was a city, the court also had to deal with Ohio's political-subdivision immunity statute, R.C. Chapter 2744. Two points from the opinion are worth knowing.

First, operating a water-supply utility is a "proprietary function," and R.C. 2744.02(B)(2) makes a political subdivision liable for its employees' negligence in performing proprietary functions. The court observed that in that role the city's duty was no different from a private person's. So the immunity statute did not shield the city from the negligence claim.

Second, the separate public-nuisance claim did not survive. The court noted that R.C. 2744.02 no longer makes political subdivisions liable for "nuisance" as such, so that claim was properly dismissed. The lesson for anyone injured by government work is that the claim has to be framed under the specific exceptions the immunity statute allows, which is one of several reasons claims against government entities need a lawyer who handles them regularly.

What this means for you

If you were hurt by a hazard that a utility, a contractor, a road crew, or a delivery company created on land it did not own, do not accept "it was open and obvious" as the end of the discussion. That defense is for owners and occupiers. The party that dug the hole, left the debris, or stacked the materials is judged by whether it acted reasonably, and the obviousness of what it left behind is only one factor a jury weighs against the obviousness of its own carelessness.

Two things make these cases winnable. The first is identifying who actually controlled the land and who actually did the work, which is often not the same entity and sometimes takes title records and public-records requests to sort out. The second is documenting the hazard immediately: the fill, the missing barricades, the single cone. Crews come back and finish the job within days, and the evidence goes with them.