Open and Obvious – An Irrelevant Defense to Statutory Violations.

Posted on January 23rd, 2015 by sutteroconnell

Under the open and obvious doctrine, there is no duty to warn or protect against open and obvious dangers.  If the injury-causing hazard was observable upon ordinary inspection, the plaintiff cannot recover.  However, according to a recent decision from Ohio’s Ninth District Court of Appeals, the open and obvious doctrine does not absolve statutory duties.  A failure to comply with statutory requirements can warrant liability –regardless whether the condition is open and obvious.

McHugh v. Zaatar was a landlord-tenant case.  The plaintiff, Amy McHugh, sued her landlord, Joe Zaatar, after she fell down her basement steps.  Before the accident, the plaintiff requested Mr. Zaatar to install a handrail in accordance with local building codes.  Mr. Zaatar ignored her request.  The plaintiff asserted a negligence per se claim against Mr. Zaatar for violating Ohio’s landlord-tenant statute.

O.R.C. § 5321.04(A) requires a landlord to: (1) comply with the requirement of all applicable building, housing, health, and safety codes that materially affect health and safety; and (2) make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.  Local building codes required the installation of handrails down basements steps.  Under Ohio law, a landlord’s violation of these statutory duties constitutes negligence per se.

Mr. Zaatar moved for summary judgment arguing that the lack of handrails was an open and obvious condition.  The trial court agreed.  The plaintiff appealed, arguing that the open and obvious doctrine did not apply.

Ultimately, the appellate court reversed.  The Ninth District concluded that negligence per se is an exception to the open and obvious doctrine:  “If Tenant proved negligence per se, then the open and obvious doctrine would not act as a bar to her claim.”  Because Plaintiff alleged that Mr. Zaatar violated duties under O.R.C. §5321.04, the defendant was not entitled to summary judgment; the open and obvious doctrine did not apply.

In sum, if a plaintiff can couch her claim as negligence per se, then the open and obvious doctrine will not apply.  Negligence per se requires proof of three elements: (1) the defendant violated an applicable statutory duty, (2) the plaintiff belonged to the class of individuals that the statute was designed to protect, and (3) the plaintiff suffered from a type of injury that the statute was designed to prevent.  If these elements are proven, the defendant’s negligence is presumed.

For example, in McHugh, the plaintiff was injured when she fell down basement steps.  This kind of injury is undeniably one of the reasons why buildings codes require handrails.  As a tenant, Ms. McHugh was the exact person Ohio’s legislature had in mind when passing O.R.C. §5321.04(A).  As such, negligence per se applied.   The fact that the missing handrail was readily observable did not absolve these statutory duties.

This decision should serve as a reminder to all landlord and business in Ohio to ensure compliance with all statutes and building codes.  Even if the danger is apparent, it does not alleviate these duties.