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Slippery Business – The Continued Vitality of the Tracked-In Water Defense in OhioPDF
By Carrie Masters Starts and Nathan Lennon
As any resident of the upper-Midwest knows, precipitation is a regular fact of life in all of its many forms, whether it be rain, ice, or snow. Recognizing this reality, Ohio courts have consistently explained for over 50 years that the retail premises/hospitality owner generally owes no duty to the business customer to protect him or her from naturally-occurring precipitation. However, there is also a longstanding rule in Ohio that business owners do have a duty to mitigate latent or hidden hazards in the interior of retail premises, if the owner creates the hazard or has a reasonable opportunity to become aware of the hazard. Because of the tension of the duties relating to the interior of the premises, cases can arise where a customer slips/trips and falls in the store interior on spilled liquids, particularly where spills are not obvious to the customer.
A particular variety of case has arisen repeatedly in the retail setting where these two areas intersect – the slip/trip and fall on “tracked in” water in the store entrance or vestibule. This type of case typically involves a customer’s incident in the vestibule or just inside the entrance of a store. In this particular area, the courts have repeatedly held that the store owes no duty to mitigate water (whether from rain, ice, or snow) that is “tracked into” the store from the outside, regardless of whether the store is on notice of precipitation outdoors, or whether that precipitation is being tracked in by customers. The rationale for this rule arises from the “open and obvious” doctrine, which generally holds that premises owners owe no duty to customers as to open and obvious hazards, or in other words, hazards that anyone would be able to observe and appreciate. By the same token, because any customer would have experienced the effects (and hazards of) natural accumulation, whether in the form of rain, ice, or snow, customers are also presumed to understand that precipitation is frequently tracked into the entrance areas of stores as shoppers move into the store during periods of inclement weather.
Recently, the Fifth Ohio Appellate District, in Stark County, affirmed the longstanding rule in Bragg v. GFS Marketplace, LLC, 2018-Ohio-3781 (Sep. 19, 2018). In Bragg, an employee of the Honeybaked Ham Company visited a local grocery store to purchase supplies for his workplace, which was one of his regular employment duties. Earlier that day, it had snowed, but the snow had melted into water throughout the parking lot of the premises. Even though it was not legally required to do so, the store had rain mats immediately inside the vestibule of the store. To the left of the vestibule in the entrance, shoppers were able to select grocery carts for use in the store. The Plaintiff walked into the entrance of the store, moved to the left over the rain mat, and immediately slipped and fell on a rubberized floor in front of the cart area.
Despite Plaintiff’s argument that the source of the water in the vestibule could have been from other customers visiting the store beforehand, the appellate court affirmed the trial court’s summary judgment in favor of the store. In reaching this decision, the Fifth District reasoned that the source of the water was essentially immaterial – regardless of whether the water came from another customer, or even the Plaintiff’s own feet after walking through the wet parking lot, there is simply no duty to mop, remove, or even to warn of tracked-in water in the store vestibule. As the court observed, Ohio courts have consistently held for decades that “[t]racked in water is a condition created by inclement weather and everyone should be aware of the conditions.” (internal citation omitted)
For the retail premises operator, Bragg represents a continued note of confidence regarding the legal duties that extend into the immediate entrance area of the retail store. While it may be a prudent or best practice to have rain mats or staff helpers available to remove precipitation tracked into this area, it is not legally required to do so, and the store is not an insurer for its customers’ safety in this area.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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