The 'Open and Obvious' Defense in Fall Cases, and How Good Investigation Gets Around It

Published June 27, 2011 · Injury Law Basics · Ohio Appeals Courts

Of all the injury claims that die in the first week, falls are the most common. A woman trips over a raised sidewalk slab outside a Huber Heights strip mall and breaks her wrist. She assumes, because she could have seen the slab if she had been looking, that she has no case. The property owner's insurer is counting on exactly that assumption. Six weeks later the slab has been ground down, the surveillance video has been overwritten, and the one witness has moved.

Ohio's "open and obvious" doctrine is real, and it ends many fall cases. But it has limits that property owners would prefer you not know about, and whether your case falls inside or outside those limits is usually decided by evidence gathered in the first days.

The doctrine

A property owner owes people lawfully on the premises a duty of ordinary care: to keep the property reasonably safe and to warn of hidden dangers. The open-and-obvious doctrine is an exception. An owner has no duty to warn of a hazard that is open and obvious, because, in the reasoning Ohio courts use, the obvious nature of the hazard is its own warning.

Two features of the doctrine make it dangerous for injured people. First, in Ohio it is not a defense that reduces your recovery; it eliminates the owner's duty altogether, which means the case is thrown out before a jury ever hears it. Second, the test is objective. The question is not whether you saw the hazard, but whether a reasonable person exercising ordinary care would have. A plaintiff's admission that "if I had looked down I would have seen it" is often the end of the case.

That is why what you say to an adjuster in the first week matters so much. The recorded statement in a fall case is built to extract that admission.

Limit one: the facts decide, and the facts are often disputed

Ohio appellate courts have repeatedly said that whether a particular hazard is open and obvious depends heavily on the specific facts and can be a question for the jury. Last year the Second District, which hears appeals from Montgomery, Greene, Miami, and surrounding counties, decided Hissong v. Miller, 186 Ohio App.3d 345 (2d Dist. 2010). A customer at a Piqua shoe store asked to use the restroom, was directed to the back, opened the wrong door, reached for a light switch, and stepped down an unlit basement stairway with no landing.

The trial court threw the case out as open and obvious. The Second District reversed. The court asked a simple question: "Do most people look down before stepping inside a restroom?" It held that question "cannot be answered as a matter of law." An inward-opening door, the court reasoned, can hide the danger behind it, and a jury could find the stairway was a concealed hazard. The court also held that the related "step-in-the-dark" rule did not bar the claim, because the customer was following the clerk's directions and reasonably believed she was entering a restroom. We wrote about that decision when it came down in our post on the dark stairway case.

The configuration of the premises, the lighting, the signage, and what the owner's employees told the injured person all bear on whether a hazard was truly obvious. Those are facts, and facts must be documented.

Limit two: attendant circumstances

Even where a hazard would ordinarily be obvious, Ohio courts recognize that "attendant circumstances" can divert a reasonable person's attention and excuse the failure to see it. The Hissong court described attendant circumstances as conditions that would come to the attention of a reasonable person and reduce the degree of care an ordinary person would exercise.

Examples include a store's own displays drawing the customer's eyes upward, crowds, being directed by staff, a sudden change in lighting, and distractions the owner created. They do not help in every case; in Hissong itself the court found none, because the plaintiff admitted she never saw the unlatched door she pointed to. But where they exist, they can turn a dismissal into a jury trial.

Limit three: the doctrine protects owners and occupiers, not everyone

The open-and-obvious doctrine developed as a rule about the duty of a landowner to people on the land. It does not automatically shield a contractor, utility, or other party that created a hazard on property it does not own or occupy.

The First District applied this limit in December in Vonderhaar v. Cincinnati, 191 Ohio App.3d 229 (1st Dist. 2010). A city water crew dug a large hole in the tree lawn in front of a woman's home to repair a main, then backfilled it with loose gravel. Days later her foot slipped off the sidewalk into the fill and her leg sank about three feet, injuring her leg, knee, and back. The city argued the filled hole was open and obvious. The court held that before a party can use the doctrine as a complete defense, the record must show it was an owner or occupier of the premises, and the city had not shown that. For a non-owner who creates a hazard, the obviousness of the danger is only a factor in comparative negligence, which reduces a recovery rather than eliminating it. We covered that decision in our post on contractors and open-and-obvious.

Identifying who created the hazard, and whether that party owned the land, is therefore central to investigating any fall.

What good investigation looks like

Here is what we do in the first week after a fall client calls:

• Photograph everything, immediately, from the injured person's approach. A raised slab shot in bright sunlight from directly above looks obvious; the same slab photographed at dusk from twenty feet away, in the shadow of an awning, may not.
• Measure and document lighting. Height differentials, step dimensions, the absence of a landing, light levels at the hour of the fall, burned-out fixtures, and whether a switch was reachable before the hazard.
• Preserve video. Stores and commercial properties record their entrances and aisles. The footage is typically overwritten within days to a few weeks. A written preservation demand goes out at once.
• Identify witnesses and employees. The clerk who gave directions, the manager who had been told about the hazard, the customer who nearly fell the week before.
• Determine ownership and control. Who owns, leases, and maintains the land, and who created the hazard. These answers decide which parties can use the doctrine at all.
• Get the incident report and prior complaints. As we discussed in our post on store falls, prior complaints are the best proof the owner knew.

What this means for you

• Do not assume your fall case is hopeless because the hazard was visible. The doctrine has limits, and where your case lands depends on facts that must be captured quickly.
• Do not give a recorded statement to the property owner's insurer. Questions like "could you have seen it if you had looked?" are designed to end your case.
• Go back to the scene, or send someone, and photograph it from your approach path at the same time of day, before it is repaired.
• Write down what any employee said to you before the fall and after.
• Call a lawyer within days, not weeks. In fall cases the evidence is the case, and it disappears.