As we all know, the open and obvious doctrine acts as a complete bar to recovery in a premises liability action. The application of the open and obvious doctrine focuses on the threshold question of whether a duty exists. If a potentially dangerous condition is found to be “open and obvious” then there is no duty on the part of the premises owner. However, the open and obvious doctrine does not allow a premises owner to avoid any obligations imposed by statute. Until recently this same question remained unanswered in regard to administrative regulations.
In Lang v. Holly Hill Motel, Inc., the Ohio Supreme Court affirmed that a property owner has no common law duty to protect an invitee from an “open and obvious” hazard, even when the hazard violates the Ohio Basic Building Code. Chief Justice Thomas J. Moyer, author of the Court’s 6-1 majority opinion, wrote, “As we have repeatedly recognized, the open-and-obvious doctrine remains viable in Ohio. Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.” Because no duty of care exists for an open and obvious danger, there can be no negligence; hence, summary judgment is generally appropriate when a plaintiff is injured by an open and obvious danger.
The Ohio Supreme Court’s decision arose out of a lawsuit filed by Dorothy Lang as executor of the estate of her husband, Albert Lang. Mr. and Mrs. Lang rented a hotel room at the Holly Hill Motel. Mr. Lang, seventy-eight years old, suffered from emphysema and carried a portable oxygen tank. He tripped and fell as he attempted to climb up a two-step stairway at the entrance of the motel room, resulting in a broken hip. He died three months later.
In the complaint for negligence, Lang alleged that her husband fell because the steps were several inches higher than the Ohio Basic Building Code permitted. And Mr. Lang was not able to maintain his balance or catch himself because there was no handrail, further violating the Building Code. Holly Hill Motel filed a Motion for Summary Judgment based upon the open and obvious nature of the steps and handrail. The Trial Court granted summary judgment in favor of Holly Hill Motel.
Mrs. Lang appealed to the Fourth District Court of Appeals, asserting that the “open-and-obvious doctrine” did not apply because the hazardous condition violated an administrative regulation. The Court of Appeals agreed with the Trial Court and affirmed the dismissal. The Appellate Court noted that its decision was in conflict with two other appellate districts and requested that the Supreme Court resolve the conflict. The Supreme Court agreed and accepted jurisdiction.
Importantly, Mrs. Lang conceded that the condition was open and obvious. Nonetheless, she urged the Court to find that the “open and obvious doctrine” does not apply where there is a Building Code violation. Chief Justice Moyer concluded that Mrs. Lang was essentially arguing that the violation of an administrative regulation like the Building Code should be considered negligence per se. The Court rejected the possibility of an administrative regulation being treated like a statute. Therefore, the open and obvious doctrine does apply even in light of a violation of the Building Code, or any other administrative regulation.
The Supreme Court recognized that the motel had a duty “to exercise ordinary care and to protect the Langs by maintaining the premises in a safe condition.” In affirming summary judgment in favor of the motel, the Court reiterated that this duty was not absolute and, “where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.”
In order to establish negligence against a landowner or occupier, an injured plaintiff still must prove there is a duty of care, a breach of the duty, and injury proximately caused by the breach. Where the injury is a result of an open and obvious hazard, landowners are entitled to summary judgment as a matter of law because there is no common law duty of care to warn of open and obvious conditions. Whereas violations of a statutory obligation prevents a landowner from arguing that a hazard is open and obvious, Plaintiffs will have to demonstrate that a hazard is not open and obvious to overcome summary judgment when the violation of an administrative regulation is involved.
If you would like a copy of the complete decision, or if you otherwise have any question regarding premises liability exposures in Ohio, feel free to contact one of our Commercial Premises Liability Practice Group attorneys.