One of the more common defenses in a Cape Cod premises liability lawsuit is an assertion by the defendant that the condition was so open and obvious that any reasonable person would have noticed it and avoided it. Of course, each case must stand on its own facts when it comes to such matters.
Even if a particular case involves a condition that was arguably open and obvious, the case will not necessarily be futile. Liability may still be had in a case against a premises owner under some circumstances.
Facts of the Case
In a recent case was the personal representative of the estate of a customer who sustained serious personal injuries when she fell down an unmarked step in the defendant restaurant’s dining room. The customer filed a personal injury lawsuit against the restaurant, alleging that its negligence had been the proximate cause of her fall. The case was tried to a jury and resulted in a verdict in favor of the customer. (Some time after the trial, the customer apparently died, and the personal representative of her estate was substituted as plaintiff.) The restaurant filed an appeal, seeking review of case and asserting numerous errors.
The Appellate Court’s Decision
The Commonwealth of Massachusetts Appeals Court affirmed the lower court’s decision entering judgment on the jury’s verdict in the customer’s favor. On appeal, the restaurant insisted that the customer’s case had proceeded only on the legal theory of failure to warn. The appeals court began its opinion by pointing out that this characterization was incorrect; rather, the customer had argued not only that the restaurant had failed to warn her of the dangers of the step but also that it had failed to maintain its premises in a safe condition in light of the fact that there was a “level change” in the middle of the building. This distinction was important because, in a case proceeding purely on a failure-to-warn theory of liability, a defendant can avoid liability by showing that the complained-of danger was “open and obvious.”
The reviewing court went on to note that, even if a property owner is relieved of its usual duty to warn of a hazardous condition due to its open and obvious nature, the owner may still have other duties to those coming upon the business property. This can include, for example, the duty to remedy in some situations. Thus, if a plaintiff proceeds on a theory other than failure to warn, he or she may have a viable claim even if the condition at issue was open and obvious. Turning to the case at bar, the appeals court first held that the restaurant had waived appellate review of the trial court’s jury instructions on failure to remedy because it did not properly preserve the issue for appellate review. The court also then found that review of whether or not a special verdict slip inquiring as to whether the step was open and obvious had been waived, insomuch as the trial judge had revised the slip to comply with the defendant’s objection to an earlier version.
Overall, considering the evidence presented at trial, the appeals court opined that it would have been reasonable for the jury to have found that either the condition at issue was not open and obvious, thus triggering a duty to warn, or that, although it was open and obvious, the restaurant still owed a duty to remedy the step because it was likely to cause harm. Thus, there was no reason to disturb the lower court’s order entering judgment upon the verdict.
To Schedule a Free Case Evaluation with an Injury Attorney in Cape Cod
Those who have been hurt in a slip and fall accident may be owed substantial compensation for their injuries. To speak to an experienced Cape Cod premises liability attorney, call the Law Offices of John C. Manoog III at 888-262-6664 to learn more about how we can help you pursue a liability claim against the responsible party.