A West Virginia court of appeals decision could affect insurers’ use of the “open and obvious” doctrine in future cases brought within the state.
In the case of Hersh v. E-T Enterprises, Ralph L. Eckenrode, P & H Investments, Inc., and Troller Associates, LLC, the court was asked to examine the open and obvious doctrine in premises liability cases.
The court defined the doctrine: “Under this common-law doctrine, if a plaintiff is injured by a hazard on another’s land that was ‘open and obvious’ such that it was or could have been known to the reasonable plaintiff, then the plaintiff is barred as a matter of law from recovering any damages from the premises owner or possessor. Under the doctrine, the premises owner or possessor owes no duty of care to eliminate open and obvious hazards; instead, he or she only has a duty to correct hidden dangers.”
The case stemmed from an incident on October 9, 2009 when the plaintiff, Walter E. Hersh, went to a shopping plaza in Martinsburg, W.Va. The shopping center had two parking lots owned by the various defendants. The two parking lots were divided by an embankment with a wooden staircase.
One defendant testified that he had the staircase railing removed after skateboarders damaged it and caused it to lean dangerously.
On the date of loss, the plaintiff ascended the stairs to the shopping mall and as he returned to his vehicle and descended the stairs, he fell down the staircase. He sustained a severe head injury as a result of the fall. Because the staircase did not have railings, the plaintiffs asserted that the defendants were prima facie negligent because a local ordinance legally required at least one handrail. Meanwhile, the defendants claimed the missing handrail was an open and obvious danger.
Based on the defendants’ arguments, the circuit court granted summary judgment on behalf of the defendants in December 2011. The plaintiffs appealed the circuit court’s decision. The West Virginia Supreme Court of Appeals reversed the circuit court’s decision, noting the court’s abolishment of the doctrine. In its decision the court stated, “If a hazard is open and obvious on premises, it does not preclude a cause of action by a plaintiff for injuries caused by that hazard. Instead, a jury may consider the obviousness of the hazard in determining the comparative negligence of the plaintiff against that of the owner or possessor of the premises.”
Read the case here.
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