Ohio High Court Affirms Use of ‘Open and Obvious’ Hazard Defense

June 4, 2009

The Supreme Court of Ohio has ruled that when a plaintiff’s injuries arise from a hazardous condition on a defendant’s property that constitutes a violation of the Ohio Basic Building Code, the property owner may assert the common law defense that the hazardous condition was “open and obvious,” and that the owner therefore had no legal duty to protect an invitee against it, according to an announcement released by the Court’s Office of Public Information.

The Court’s 6-1 decision in Lang v. Holly Hill Motel, Inc., authored by Chief Justice Thomas J. Moyer, affirmed a ruling by the 4th District Court of Appeals.

The case involved a civil suit filed by Dorothy Lang on behalf of the estate of her deceased husband, Albert Lang, against the Holly Hill Motel in the Jackson County Court of Common Pleas.

The complaint alleged that Mr. Lang, who suffered from emphysema and carried a portable oxygen tank, fell while his wife was helping him ascend a two-step stairway in front of the couple’s motel room. Mr. Lang suffered a broken hip that required his hospitalization. He died three months later.

The complaint asserted that Mr. Lang’s fall resulted from the facts that the riser height of the two steps he had to climb at the motel was several inches higher than the maximum permitted by the Ohio Basic Building Code, and that there was no handrail, as also required by the building code, to help him maintain his balance or stop his fall.

Holly Hill entered a motion for summary judgment in the trial court, arguing that because the height of the steps and absence of a handrail were open and obvious conditions, the motel had no duty to protect its guests against them and therefore could not be held negligent for failing to do so. The trial court agreed and entered summary judgment in favor of the motel.

Mrs. Lang appealed, arguing that because the excessive stair height and lack of a handrail were violations of the state building code, the trial court erred in granting summary judgment in favor of the motel because the open and obvious doctrine is inapplicable and summary judgment is improper when the condition at issue is in violation of the building code.

The 4th District Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Holly Hill based on the open and obvious nature of the hazard that caused injury, but certified that its ruling on that issue was in conflict with decisions in two other appellate districts. The Supreme Court agreed to hear arguments to resolve the conflict.

In the decision, Chief Justice Moyer wrote:

“To prevail in a negligence action, a plaintiff must demonstrate that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the defendant’s breach proximately caused the plaintiff to be injured. …

“However, this duty does not require landowners to insure the safety of invitees on their property. As we have repeatedly recognized, ‘[t]he open-and-obvious doctrine remains viable in Ohio. Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.’ …

“‘[T]he owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.’ …

“Thus, when a plaintiff is injured by an open and obvious danger, summary judgment is generally appropriate because the duty of care necessary to establish negligence does not exist as a matter of law.”

While a building code violation may be strong evidence that a condition was dangerous and that the landowner breached its duty of care by failing to repair it, the Chief Justice wrote: “(T)he violation is mere evidence of negligence, and does not raise an irrebuttable presumption of it. As is the case with all other methods of proving negligence, the defendant may challenge the plaintiff’s case with applicable defenses, such as the open-and-obvious doctrine. The plaintiff can avoid such defenses only with a per se finding of negligence, which we declined to extend to this context in Chambers.”

The Chief Justice concluded by noting that property owners who violate the building code face numerous statutory penalties, including injunctions, fines and criminal sanctions, that act as strong disincentives for ignoring their obligation to maintain their property in a safe condition. He observed that today’s decision does nothing to reduce the additional deterrent of potential civil damages in cases where courts determine that a code violation that caused injury was not open and obvious.

Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a separate opinion, joined by Justice Maureen O’Connor, in which she concurred with the majority in judgment only. Justice Lanzinger observed that the open and obvious doctrine is more than a theory of defense, because it functions as a complete bar to recovery by a plaintiff based on a property owner’s negligence.

Justice Paul E. Pfeifer dissented, writing that in his view the majority’s strict application of the open and obvious doctrine is inconsistent with the General Assembly’s abandonment of contributory negligence as an absolute bar to recovery and its adoption of a comparative negligence standard that now allows an Ohio plaintiff to recover some of its damages despite having been partially responsible for them.

Source: Ohio Supreme Court, www.supremecourt.ohio.gov/

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