The Open-And-Obvious Doctrine Remains Open For Use And Obviously Forceful In Ohio - DD 12/03

Defense Digest

The Open-And-Obvious Doctrine Remains Open For Use And Obviously Forceful In Ohio

On June 4, 2003, the Ohio Supreme Court, in the case of Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 2003 Ohio LEXIS 1485, held that the open-and-obvious doctrine remains viable in Ohio as a complete bar to recovery.  The Supreme Court dispelled all speculation and belief in Ohio that the doctrine had been replaced by the doctrine of comparative negligence.

Armstrong filed a negligence action against Best Buy Company, Inc. ("Best Buy") after he entered through the exit doors of a vestibule attached to the entranceway of the store and tripped over the bracket of a shopping cart corral guardrail.  Armstrong argued in the lower courts that the open-and-obvious doctrine is no longer viable in Ohio as an absolute bar to recovery, and contended that the doctrine has been replaced by a comparative negligence approach.

The Ninth District Ohio Court of Appeals rejected Armstrong’s argument, and affirmed summary judgment applying the open-and-obvious doctrine, holding that reasonable minds could only conclude that the hazard was discernible by any patron exercising due care.  The appellate court certified its decision as being in conflict with at least one other appellate court, which held that the doctrine had been abrogated in Ohio.  The Ohio Supreme Court granted review of the case upon determining that a conflict existed.

Initially, the Supreme Court pointed out that an earlier decision, relied upon by an appellate court in holding that the doctrine had been abolished, actually involved the third element in a negligence analysis – proximate cause.  In that case, the first prong in the analysis – the existence of a duty – was not before the court.

Next, the Supreme Court acknowledged that other courts have abolished the open-and-obvious doctrine in favor of a comparative negligence approach.  These courts look at the obviousness of the hazard as one factor to be taken into account in determining a plaintiff’s comparative negligence.

However, the court declined to follow these cases and reasoned that the open-and-obvious doctrine is not concerned with causation but rather stems from a landowner’s (or occupier’s) duty owed to persons on the property.  The court reiterated that when courts apply the rule, they must focus on the fact that the doctrine relates to the threshold issue of duty.  The court observed:

By focusing on the duty prong of negligence, the rule properly considers the nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.  The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability.  Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff.

Therefore, the open-and-obvious doctrine remains viable in Ohio.  Significantly, the Ohio Supreme Court has also held that the existence of a duty in a negligence action is a question of law for the court to determine.

The continued feasibility of the doctrine is good news to those involved in the defense of premises liability claims in Ohio.  The Armstrong Court approved the doctrine as a definite and effective defense tool.  The doctrine remains a distinct issue in a premises liability negligence analysis, along with prior notice of the hazard, breach of duty and causation.  The doctrine must be immediately contemplated in the early analysis of a claim, and given significant consideration in discovery and motion practice during litigation.

*Chris is an associate in our Akron, OH office.  He can be reached at (330) 255-0042 or creece@mdwcg.com.