holding that COLO.REV.STAT. ANN. § 13-21-115 preempted the "open and obvious danger" doctrine
How later courts described this case
- holding that COLO.REV.STAT. ANN. § 13-21-115 preempted the "open and obvious danger" doctrine
- holding that the invitee must exercise reasonable care in avoiding harm from a condition of the premises with consideration to the obviousness of the danger and the ease or difficulty with which harm could be avoided
- concluding that Restatement (Second) of Torts §§ 343, 343(A)(1) “were a fair statement of the common law rules applied by this court to actions brought by invitees against occupiers of real property”
- stating that an open and obvious danger standard would not control in assessing comparative fault
Written by the judges who cited it.
The opinion
PETERSON, C. J.,
concurring.
My reason for writing this separate opinion is to explicitly state a proposition which I believe to be implicit in the majority opinion: Although instructions relating to the defendant’s duty normally should not refer to the obviousness of the condition, awareness of those expected to encounter the condition is not irrelevant to the question whether the defendant has violated the duty of care owed to the plaintiff.
With respect to conditions which create an unreasonable risk of harm to invitees on property, possessors of land are required to exercise reasonable care to discover such conditions and protect invitees against harm arising from such conditions. The protection can be accomplished in various ways, including removal of the condition or warning against it.
*560 Whether a condition creates an unreasonable risk of harm often turns on the knowledge of reasonable persons expected to use the premises. For example, steps leading to many premises create a condition of potential danger. But such conditions likely are not unreasonably dangerous because the hazards arising by reason of use are known and understood by reasonable persons expected to use the steps.
The identical steps may, however, create an unreasonable risk of harm at night if they are improperly lighted. The reason: The hazards might not be apparent to those persons expected to use the steps.
In a negligence case, upon the defendant’s motion for a directed verdict under ORCP 60 on the ground that there is no evidence of negligence, whether the motion will be allowed may turn upon whether users of the premises would or should be aware of the hazards of use. Knowledge and awareness of the user are not irrelevant to the defendant’s duty, or whether, under the evidence, there is any breach of duty.
Nylander v. State of Oregon, 292 Or 254 , 637 P2d 1286 (1981), involved a claim for damages arising from the presence of ice on an icy highway bridge. We stated:
“In the present case, for instance, whatever duty the state had to post warnings on the morning of November 15, 1978 arose from the fact that the road and bridge were open to vehicular traffic generally, from the objective weather and surface conditions at that time, from the degree to which these conditions could be said to be obvious to the general public without a warning and the degree to which additional localized danger exceeded what was generally obvious, and perhaps from such additional obligations as the state may have undertaken by its own stated rules or guidelines on the subject. * * *” (Emphasis added; footnote omitted.) 292 Or at 258 .
The quoted language, while it does not approve instructing juries relative to the defendant’s duty of care in light of the knowledge of the specific user, certainly makes clear that one of the factors which determines whether the duty has been breached is the general obviousness of the danger. 1
*561 The concern which prompts this separate opinion is that instructions relative to an alleged failure to warn often refer to knowledge or awareness of persons expected to be exposed to the condition. Whether it is appropriate to phrase a warning instruction in terms of the knowledge or awareness of persons expected to be exposed to the condition must await that case.* 2 As Nylander suggests, the occupier’s duty to warn or take other action may turn, in part, upon the obviousness of the hazard and knowledge of the user. 3
Because of the passage of ORS 18.470 and 18.475, the safer course is this: In drafting instructions to the jury regarding the defendant’s duty, make no reference to the obviousness of the danger or to the user’s knowledge of the danger.
The instructions given in the case at bar are subject to criticism under Nylander because they refer to danger which is “known or obvious to the invitee,” rather than to *561 dangers which would be known or obvious to “a reasonably prudent invitee.” (See discussion in Nylander v. State of Oregon, supra, at 292 Or 257 -260). The 343A(1) instruction set forth in the majority opinion is also defective because it is phrased in terms of what does not create liability. Instructions should be phrased in terms of what the law requires, not in terms of what the law does not require.
Compare Oregon Jury Instructions for Civil Cases No. 160.10:
“When an employer has actual knowledge or in the exercise of reasonable care would have had knowledge of hazards or dangers, the employer is then under the duty of warning an employee of such hazards or dangers as would not be apparent to an employee in the exercise of reasonable care.”
The majority apparently recognize that in determining the defendant’s fault, the trier of fact may consider the obviousness of danger. The majority opinion states that “[i]n determining and comparing fault, the jury must necessarily consider the obviousness of danger and the ease or difficulty with which harm to the plaintiff from that danger could be avoided by either party.”