The Ohio Twelfth District Court of Appeals recently held that a condition that is open and obvious to restaurant guests cannot form the basis for a lawsuit under Ohio law, regardless of how dangerous the condition is. Specifically, in Vanderbilt v. Pier 27, 2013-Ohio-5205 the Court held that a fire pit located on the patio of a restaurant is an open and obvious danger, and that the trial court correctly dismissed a case filed by a woman who was injured upon falling into the pit.
Pier 27 was a restaurant and bar located in Ross Township, Butler County, Ohio. It consisted of an indoor and outdoor bar and seating area, as well as a stage, volleyball court and fire pit. It was undisputed that Pier 27 held all necessary permits allowing it to operate the fire pit on the premises. The plaintiff, Amy Vanderbilt, attended a high school reunion gathering at Pier 27 on October 2, 2010, and, after consuming three to four beers, was accidentally bumped by another patron and lost her balance and fell onto the fire pit. She suffered a broken wrist and third-degree burns on her hand.
Vanderbilt and her husband filed a lawsuit against Pier 27 alleging claims of negligence and loss of consortium. The trial court, holding that the open and obvious doctrine defeated Vanderbilt’s negligence claim, granted Pier 27’s motion for summary judgment and dismissed her complaint.
On appeal, Vanderbilt argued that, although fire is generally considered an open and obvious hazard, the doctrine should not apply to her claim since the fire pit was “an unreasonably dangerous condition.” She posited that the open and obvious doctrine only meant that the restaurant did not have a duty to warn, and did not affect her claim that Pier 27 failed to maintain its premises in a reasonably safe condition. To buttress her argument, Vanderbilt relied on, and asked the Court to adopt, a New York appellate court decision, Westbrook v. WR Activities-Cabrera Markets, 773 N.Y.S. 2d 38, (2010), which held that “the open and obvious nature of a hazard merely negates the duty to warn of the hazard, not necessarily all duty to maintain premises in a reasonably safe condition.”
The Twelfth District, upon an extensive review of Ohio case law, held that Ohio law recognizes no such exception to the open and obvious doctrine. The Court, recognizing the long history of the doctrine in Ohio, reiterated that, where a danger is open and obvious, “a landowner owes no duty of care to individuals lawfully on the premises.” Applying the law to Vanderbilt’s claims, the Court found that the fire pit was readily observable and that Vanderbilt, who had been to Pier 27 between seven and ten times before the incident, was well aware of the fire pit at Pier 27. Thus, the open and obvious nature of the fire pit precluded Vanderbilt’s claim, regardless of whether the fire pit amounted to an unreasonably dangerous condition.
As this case demonstrates, different jurisdictions may have different exceptions to and interpretations of the open and obvious doctrine. For a copy of this opinion, more information concerning its application, or for any other question with respect to premises liability, please contact one of Reminger’s Retail and Hospitality Practice Group members.