Open and Obvious
Recently I did a video summarizing a case where a store was granted a Motion for Summary Judgment based upon the Open and Obvious doctrine. www.hennessyroach.com/updates/mcandrew_fleet_update.html Unfortunately they are not always that easy, see below:
On September 25, 2001, plaintiff, Carlota Alqadhi, tripped and fell over raised concrete while leaving a parking garage owned by defendant Center at River East LLC and run by defendant Standard Parking. She alleged she tripped because defendants failed to mark a 3/4 inch rise in concrete of a wheelchair -accessible ramp. Defendants filed a motion for summary judgment arguing the condition was open and obvious. The plaintiff responded with an affidavit by a registered engineer. The engineer acknowledged the ramp was imprinted with a cross hatched diamond pattern to warn pedestrians but he "found the lack of contrast between the surface of the parking level and the the curb ramp disguised the abrupt change in vertical elevation between the parking level and those surfaces. . ." He concluded that the defendant's failure to mark the curb with contrast paint was the proximate cause of plaintiff's accident.
The trial court found that the raised concrete was an open and obvious condition and granted the defendant's motion. The Appeals Court said that normally where there is no disputed about the physical nature of the condition, the question of open and obvious is a legal one for the court. However, where there is a dispute about the condition's physical nature, such as visibility, the question is factual. The Court pointed to plaintiff's testimony that the lighting conditions around the curb was "dark." As such the Appellate Court disagreed with the trial court and the ruling was reversed.
