Tuesday, August 4, 2009


This is a frequently asked question. First, let’s knock down a myth that some people believe when it comes to injuries that occur on someone’s premises, whether it’s a home or a business.

General Rule No 1: You as a landowner or business owner are NOT automatically liable if someone slips or trips or falls on your property. You are only liable if you as a homeowner, or your employees if you own a business, were NEGLIGENT.

This same rule holds true if YOU were injured or fell in a store; the store is not liable unless you prove it was negligent. However, courtesy of two recent Ohio Supreme Court cases, proving a store’s negligence just got a lot harder. First, you now have to show that the hazard that caused you to fall was not “open and obvious” or your case will get thrown out of court.

EXAMPLE: You are pushing a shopping cart in a grocery store. A stock clerk negligently spills some detergent or leaves a pallet on the floor at the end of an isle. Problem: you can’t see it because it’s lying in an area where you are turning the corner as you push your cart. You fall or trip and break your hip. You tell the manager: “I had no idea it was there because I was pushing my cart and coming around the corner.”

Under the “open and obvious” rule, the store can say, “well, it was open and obvious if you had just looked where you were going” and the chances are great that your case will get thrown out of court. Never mind the fact that the detergent or pallet or whatever was on the floor HAD NO BUSINESS BEING THERE AND THE STORE KNEW ABOUT IT AND NEGLIGENTLY CREATED THE HAZARD FOR UNSUSPECTING SHOPPERS! In fact, the store employees could actually ignore the store manager's order to clean the spill immediately and it wouldn't matter, as long as the condition is "open and obvious."

It gets worse. Under a June, 2009 Ohio Supreme Court case, a business owner can even violate the provisions of The Ohio Basic Building Code (which regulates things like stair heighth, handrails, and other safety features in buildings) and still use the open and obvious defense to avoid responsibility for its own negligence!

In that case, a frail 78 year old man who carried an oxygen tank called ahead for a motel room and specifically reserved a handicapped room so he wouldn’t have to climb any stairs. When he and his wife arrived, the room was already rented, so they were given a room requiring the man to climb two steps. Here was the problem: the steps were in violation of the building code because they were almost 2.5 inches higher than what was legally allowed. You can guess what happened: he fell, broke his hip, and died three months later from all kinds of complications.

The injured man went out of his way to avoid having to negotiate any steps, was forced to negotiate two steps that were too high, in admitted violation of the Ohio Building Code, and STILL got his case tossed out of court. Why? The condition of the steps were “open and obvious.” This ruling just made it a lot harder to pursue lawsuits where someone is injured on another's business property.

These rulings are GREAT for the insurance companies who insure stores, motels, malls, and other businesses. Now, no matter what condition a store is in, and no matter how preventable these falls are, department stores and big retailers can now leave huge messes, objects, and clutter wherever they want. And they can potentially deny responsibility of preventable, legitimate injuries as long as their mess was “open and obvious.” And you as the injured consumer are left holding the bag.

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