Patrons of shopping centers are owed the highest duty of care by the property owner/manager to ensure the sight is free of unreasonable hazards. Where those hazards exist but are not obvious, businesses have a responsibility to quickly remedy them and, if necessary, to warn customers about it.
But what happens when a danger is obvious? This falls under the umbrella of a legal theory known as the “open and obvious doctrine.” This is a major exception to the general rule that property owners have a duty to take reasonable care to protect invitees from an unreasonable risk of harm. The doctrine holds that the invitor will be shielded from liability if the hazard in question was both open and obvious.
Now, there can be an exception to the open and obvious rule, too. It is reasonable distraction. This distraction exception can apply in cases where the land possessor should have had a reasonable expectation that the invitee’s attention was going to be distracted, so that he or she wouldn’t have discovered what is obvious and what might otherwise be discovered in time to protect against it. Asserting such a case can prove challenging. Alternatively, plaintiff could dispute the open-and-obvious nature of the hazard, as did the plaintiff in the recent North Carolina Court of Appeals case of Utley v. Smith Hardware and Garden.
According to court records, plaintiff was shopping for plants one day in September 2012 when he tripped over several crates of tomatoes that were stacked one on top of the other in an aisle. He suffered injuries to his hip and shoulder as a result of the fall.
Subsequently, plaintiff filed a trip-and-fall lawsuit against the store, alleging negligence and loss of consortium. Defense filed a motion for summary judgment, which was granted, based on the fact that the hazard in question was open and obvious. Plaintiff appealed.
On appeal, plaintiff argued there was a genuine issue of material fact as to whether the hazard was open and obvious.
The appellate court noted first that North Carolina property owners owe a duty of reasonable care to all lawful visitors. Business owners in particular have to exercise ordinary care in keeping a reasonably safe condition in those areas of the property that are expected to be used by customers during business hours. They also must give warning of any hidden perils or unsafe conditions that exist or can be determined to exist by reasonable inspection or supervision. There is no duty by an owner to warn of a condition that may be open or obvious, per the 1988 appellate court ruling in Jacobs v. Hill’s Food Stores, Inc.
In this case, plaintiff testified that he saw the crates when he first started walking down the aisle, and then he turned around, walked back up the aisle, and was distracted from seeing the crates just before he tripped on them. The court held that the crates were an open and obvious condition protruding into the aisle at the time plaintiff fell on them. He knew or should have known their location when he fell, the court ruled. Therefore, defendant had no duty to warn of that condition.
Secondly, plaintiff argued that even if the crates were open and obvious, the store had a duty to warn of the danger because the aisle was open for public use and couldn’t be navigated safely. It’s true there have been some cases – namely when we’re talking about icy steps or walkways – where a dangerous condition may be open and obvious but unable to be safely navigated and the property owner could still be liable. In this case, though, plaintiff had already testified that he’d walked down the aisle once without a problem, indicating he had moved around the crates with reasonable safety.
The appellate court affirmed.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Utley v. Smith Hardware and Garden, Dec. 6, 2016, North Carolina Court of Appeals
More Blog Entries:
Patchett v. Lee – Establishing the Reasonable Value of Medical Care, Nov. 4, 2016, Greensboro Injury Lawyer Blog