As a follow up to our previous post concerning slip and fall cases in Ohio, the 11th Appellate District has published another decision applying the open and obvious doctrine. The Court determined that a plaintiff’s individual activity can constitute attendant circumstances. Essentially, what a plaintiff is doing at the time of the fall can negate the open and obvious nature of a tripping hazard.
Gibson v. Leber, 11th Dist. Nos. 2013-L-041, 44, 2014-Ohio-4542 involved a plaintiff who stepped into a pothole. The plaintiff went to Dairy Mart and parked in an unfamiliar area of the parking lot. No cars were parked next to her that could have obstructed her view of the ground. Upon exiting her car, while her door was still open, the plaintiff stepped into a pothole. The plaintiff claims that her open car door obstructed the view of the pothole. The pothole was about 2’’ deep.
The trial court granted the defendants’ motion for summary judgment on the grounds that the hole was open and obvious. Id. at ¶3. The trial court held that a plaintiff’s individual activity at the moment of the fall cannot constitute an attendant circumstance. The plaintiff argued that the court’s decision was contrary to law.
The plaintiff appealed to the 11th District Court of Appeals. The Court held that trial courts, when faced with an open and obvious argument, must consider whether, in light of the specific facts and circumstances of the case, an objective, reasonable person would deem the danger open and obvious. Id. at ¶4. In other words, would the tripping hazard have been observable to a reasonable person under the same circumstances?
The Court disagreed with the trial court’s determination that a plaintiff’s “individual activity” generally cannot create an attendant circumstance. Id. at ¶7. The Court held that the creator of the attendant circumstance is not the focus. Id. at ¶23. Instead, the important question is whether the landowner could reasonably foresee that the attendant circumstance would exist when the invitee encountered the condition controls. Id. at ¶23. “Ordinary invitee-initiated tasks such as carrying a pizza box across a parking lot or opening a car door are attendant circumstances because the business owner can foresee these activities and that such activities could obstruct the invitee’s view of the condition. As such, the plaintiff’s testimony that the car door obstructed her view of the ground was “sufficient to create a question of fact as to whether the condition was open and obvious.” Id. at ¶23. The Court acknowledged that its view was “in significant disagreement with several other district courts.” ¶7