Watch Where You Are Going
By AJ Wagner
A woman brought suit against a Meijer store and Home City Ice saying she was injured when she slipped and fell at the store. She alleged that she was injured as a result of a hazardous condition that Meijer and Home City Ice negligently permitted to exist when a puddle formed in front of the ice machine near the store’s exit.
The woman testified that she did not notice anything unusual when moving toward the store exit. She said that she saw people in the check-out lanes and “was walking toward the door watching to make sure no one came out and got in my way.” She reported that she was focused on the door she was approaching: she “had the cart in front of [her]” and “wasn’t looking at the ground.” As she neared the east-exit door, she testified, “[w]hen I got in front of the ice machine, [I] slipped in something, went down hard on my right knee, all my weight, hanging onto my cart when I did it.”
When she stood up and looked where she had fallen, the woman “could see that there was water” on the floor. She said she did not see the water as she approached it. She testified that the only reason she did not see the puddle was because her attention was focused on the door in front of her.
Meijer argued that it cannot be held liable because the puddle of water on which the woman allegedly slipped was an “open and obvious” condition. The woman’s attorneys argued that the “attendant circumstances” exception to the “open and obvious” condition rule applied.
A judge threw the case out. The court rejected the woman’s attendant-circumstances argument, stating: “Good grief, every shopper has to watch where they are pushing their cart so as not to run into others and store displays; and it is not as if the carts are moving at 25 mph.” The court further found: “The condition in this case was observable; they were the type of conditions (puddles of water) which are known to be located in front of ice vending machines in the summer, and there was nothing which distracted the Plaintiff from seeing the puddles and avoiding them.”
In a 2-1 decision, appeals judges agreed. Citing a case where someone had slipped on snow and ice, the court explained the “open and obvious” rule:
1. An occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them.
2. The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them.
3. Ordinarily, an owner and occupier has no duty to his business invitee to remove natural accumulations of snow and ice from private walks and steps on his premises.
The appellate court also noted, “Although store owners have no duty to protect its patrons from tracked-in water from snow or rain near the entrance to the stores, they do have a duty to protect patrons from clear substances on their store floors that are not open and obvious dangers.”
The court also stated, “As a corollary to the open-and-obvious doctrine, [this Court has] recognized that there may be attendant circumstances [that] divert the individual’s attention from [a] hazard and excuse her failure to observe it. While there is no precise definition of ‘attendant circumstances,’ it generally refers to ‘any distraction that would come to the attention of [the plaintiff] in the same circumstances and reduce the degree of care an ordinary person would exercise at the time.’ Attendant circumstances do not, though, include regularly encountered, ordinary, or common circumstances.”
The court concluded, “The plaintiff’s testimony is that she was not distracted at all. Accordingly, there is no factual basis on which to apply the attendant-circumstances exception. Moreover, she has not cited evidence of any circumstances that were out of the ordinary, uncommon, or not regularly encountered. We agree with the trial court that ‘there was nothing which distracted the plaintiff from seeing the puddles and avoiding them.’”
The one judge who did not agree with the analysis wrote a strong dissent saying that clear water seen after the fall does not meet the criteria for “open and obvious.”
This case is an illustration of how difficult slip and fall cases are when you are expected to see everything in front of you, beside you, over you and under you. Good luck with that.
Based on: Colville v. Meijer Stores Ltd., 2012-Ohio-2413
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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.