By Thomas R. Wolf and Lauren D. Lunsford

The view from opposite sides of a river can sometimes be as different as night and day.  So too can courts on opposite sides of a river look at the same legal doctrines and come up with completely different views.  Such is the case in Ohio and Kentucky when evaluating the effect of an open and obvious danger.


Ohio Retains Open and Obvious


In Ohio, the owner of a premises is not an insurer of the customer's safety and is under no duty to protect business invitees from dangers "known to such invitee or are so obvious and apparent to such invitee that may reasonably be expected to discover them and protect himself against them."  The recent case of Snyder v. Kings Sleep Shop, LLC, 2014-Ohio-1003 provides a good overview of Ohio's view of the open and obvious doctrine. Snyder involved a shopper in a furniture store that inadvertently placed his foot partially on the edge of a ramp, causing him to fall.  He sued the store as a result of his injury. 


The plaintiff asserted that the store owner was liable due to the store's failure to remedy or warn him of an unreasonably dangerous condition on the premises.  Further, the plaintiff asserted that the ramps were not constructed in conformity with the Ohio Building Code or the Americans With Disability Act Accessibility Guidelines. The defendant responded by asserting that no duty was owned under Ohio law, as the difference in elevation was an open and obvious situation.  The trial court submitted a 19 page decision granting the defendant's motion for summary judgment. The Court of Appeals affirmed the trial court's decision and affirmed Ohio's longstanding principle that a premises owner only owes a duty of ordinary care to maintain the premises in a reasonably safe condition and to warn an invitee of latent or hidden dangers[1].          


The plaintiff also argued that the ramp had been built in violation of the Ohio Building Code and the Americans With Disability Act Accessibility Guidelines.  Ohio law holds an exception to the open and obvious doctrine where a violation of a statutory duty constitutes negligence per se.  However, the court found that the exception does not apply to administrative rules such as the Ohio Building Code or the ADAAG.  As such, the open and obvious doctrine applied. 


Lastly, the plaintiff asserted that attendant circumstances, generally described as distractions created by the defendant, create another exception to avoid the use of the open and obvious doctrine.  The plaintiff asserted that "vignettes", the display of furniture set out to attract the shoppers' eye, created an attendant circumstance that created an issue of fact on summary judgment.  The Court of Appeals rejected the argument, finding that, "customers who are distracted by merchandising signs, goods and displays routinely encountered within a store for sales promotion are not excused from discovering open and obvious dangers."  Snyder, at para. 24, citing Grossnickle v. Village of Germantown, 3 Ohio St. 3d 96 (1965). 


Kentucky Abolishes Open and Obvious


On the opposite side of the Ohio River, Kentucky has eliminated open and obvious as a complete defense.  On November 21, 2013, the Kentucky Supreme Court issued two opinions, Shelton v. Kentucky Easter Seals Society, Inc., 2011-SC-000554-DG and Dick's Sporting Goods, Inc. v. Betty C. Webb, 2011-SC-00518-DG.           


In Shelton, the plaintiff, the wife of a patient who made daily visits to her husband, tripped on wires running from the hospital bed to nearby medical equipment. The plaintiff sued, claiming that the hospital should have done more to prevent her fall.  In response, the hospital argued that it had no such duty because the wires were open, obvious and necessary. 

The court rejected defendant's arguments in nearly 30 pages of dicta.  The court stated that the evaluation of the existence of a duty in the context of each particular hazard (i.e. to analyze whether the hazard is open and obvious) is "obtuse" and out of sync with Kentucky's modern comparative fault principles.  The court found that the hospital may have breached its duty of care to the plaintiff regardless of whether the wires were open and obvious.  Further, the court suggested that the hospital could have employed "alternative solutions, warnings or precautions" to prevent her injury.


On the same day, the court issued Webb, which provided some insight as to when an open and obvious hazard exists.  In Webb, two rugs located at the entrance of a Dick's Sporting Goods store were angled in a "V" shape and saturated with water due to heavy rain.  The space inside of the "V" was obviously wet.  The plaintiff, attempting to avoid the wet area, stepped off the opposite side of the rug onto a floor tile which appeared to be dry.  Unfortunately, tile was wet and slippery, and the plaintiff fell. 


In response to the defendant's argument that the condition was open and obvious, the court held that the floor tile did not present an open and obvious hazard.  The court defined an open and obvious condition as one in which a plaintiff subjectively perceives and one that a reasonable person, through the exercise of ordinary attention and perception, knows or should know about.  In this case, since the plaintiff did not know that the tile she stepped onto was slippery (and there is no indication that a reasonable person would have known) the hazard was not open and obvious.  The court held that an invitee's duty of care under traditional negligence principles does not require looking for more than an "instant" to detect a potentially hazard condition, even though the plaintiff admitted that she knew about the wet conditions in the area. 


Common Ground on the Dangers of Snow and Ice

Although Ohio and Kentucky are forging divergent paths with regard to applying the open and obvious doctrine, both states still seem to agree that the natural accumulation of snow and ice creates an open and obvious danger, especially at a personal residence. For example, an Ohio court found that a driveway shoveled three days before a housekeeper fell was an open and obvious condition[2]. Similarly, in Kentucky, the court held that a home owner holding an open house had no duty to a potential home buyer who slipped and fell on a patch of snow covered ice on her driveway[3].


So, while Ohio and Kentucky may see eye to eye on applying the open and obvious doctrine to ice and snow, in almost every other context, however, the burden on premises owners is higher in Kentucky. As a corollary, the chances of obtaining summary disposition in Kentucky, based on the open and obvious cases, is lower. Perhaps the only business owners in Kentucky who are pleased with the state’s heightened bar are its boat dealers - as Kentucky’s premises owners may be looking for the fastest way to cross the river into Ohio.

[1] Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St. 3d 203 (1985).

[2] Murphy v. McDonald's Restaurants of Ohio, Inc., 2010 WL 3821516

[3] Curtis v. Becker, 2005 WL 678759

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