explaining that if the hazardous condition is "so obvious" that all persons would have had to observe the hazard, then the law absolves the property owner from taking any further action to protect an invitee
How later courts described this case
- explaining that if the hazardous condition is "so obvious" that all persons would have had to observe the hazard, then the law absolves the property owner from taking any further action to protect an invitee
- holding that the bracket of a shopping-cart guardrail at the entranceway of the store by the exit doors was an open and obvious condition
- noting that Armstrong admitted in his deposition that when he entered the store, nothing was obstructing his view prior to the fall and if he had been looking down, he would have seen the guardrail
- determining that the rail plaintiff tripped over was an open-and- obvious danger as a matter of law
Written by the judges who cited it.
The opinion
Pfeifer, J.,
concurring in part and dissenting in part.
{¶ 17} In the days of contributory negligence, the “no duty” rule had a role. In an already harsh climate for plaintiffs, it culled many claims lacking legal merit. In the modern era of comparative negligence, it is an archaic throwback better left in the past. There is little need for a bright-line cutoff today. Fault can be apportioned and claims litigated accordingly. It just doesn’t make sense that a business would owe an invitee “no duty.”
{¶ 18} The rule essentially requires every person entering a store to engage a 360-degree radar system in order to be at all times aware of open-and-obvious dangers. Based on the facts before us, Best Buy apparently expects its patrons to watch the floor constantly, thereby missing its splashy merchandising. There is no other way to avoid tripping over a rail that is only inches off the floor.
{¶ 19} We have all tripped over something left on the floor by our children, spouse, roommate, or even ourselves. Many times, the item tripped over is in plain sight, open, and obvious. Nevertheless, we trip because we don’t see the item. Open-and-obvious dangers are not always seen, and a jury is capable of determining whether the person not seeing an open-and-obvious danger was wholly, partially, or not at fault. The open-and-obvious-danger doctrine is a *84 misnomer, and its use as a complete defense ought to be abrogated. The inquiry about whether a duty is owed in this context should be premised primarily upon whether the defendant has created a foreseeable risk of harm to the plaintiff, not solely on whether a risk, if seen, should have been avoided.
Miraldi & Barrett Co., L.P.A., and Matthew H. Barrett, for appellant.
Law Offices of Jan A. Saurman and Kerry Randall-Lewis; Arter & Hadden, L.L.P., and Irene C. Keyse-Walker, for appellee.
Kitrick & Lewis Co., L.P.A., Mark Lewis and Mark Kitrick, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.
Fauver, Keyse-Walker & Donovan, L.P.A., and Kurt D. Anderson, urging affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.
{¶ 20} Even so, I concur in that portion of the majority opinion that concludes that Texler did not address or abrogate the open-and-obvious doctrine. I dissent because I would abrogate the doctrine today.