Property owners have a responsibility to keep their site in reasonably safe condition for those they welcome to it. That means if there are dangers present, property owners have to take steps to either mitigate those dangers or warn people about them.
One exception, however, are dangers that are “open and obvious.” Generally, the “open and obvious danger” doctrine holds that a property owner has no duty to correct or warn of a hazard that is open and obvious. The reason is the obviousness of the hazard is itself considered to be an adequate warning.
This principle has been well-established in New York case law. Consider the cases of Pinero v. Rite Aid of New York, Inc. (1st Dept. 2002) and Demarrais v. Swift (2nd Dept. 2001) and Rolfe v. Galt (3rd Dept. 1984).
However, the Appellate Division in New York has been split about whether a finding of “open and obvious” automatically means defendant is entitled to summary judgment in a premises liability case. One of the reasons is the “Second Restatement Rule of Torts,” which in part holds that while a landowner isn’t liable for harm caused by open and obvious danger, there is an exception when possessors “should anticipate the harm despite such knowledge or obviousness.” An example offered is when there is reason to suspect harm the invitee’s attention may be divided or distracted, such that he will not discover what’s obvious, forget what’s been previously discovered or fail to protect himself.
This is often referred to in legal spheres as the “distraction doctrine.” It’s not easy to prove, but our Manhattan fall injury lawyers know it’s not impossible. Some examples of successful cases employing the distraction doctrine have included:
- A plaintiff collided with a five-foot tall concrete post located outside a customer entrance to a retail store operated by a defendant while carrying a large mirror he had just purchased. The court ruled the distraction exception applicable because defendant should have anticipated the customer, even in the exercise of reasonable care, would become distracted carrying bulky items away from the store.
- A plaintiff was hurt at a construction site after falling in a large hole created by big tires when he exited a portable bathroom between two multi-story buildings. The court found the distraction exception applied because, while the ruts were open and obvious, the plaintiff had been looking up because the contractor had allowed workers to toss debris off the buildings in that location, and plaintiff was making sure nothing would fall onto his head.
However, the Illinois Supreme Court recently ruled the distraction doctrine was not applicable for the plaintiff in Bruns v. City of Centralia, who asserted the exception after suffering injury tripping over a cracked sidewalk while walking into an eye clinic.The elderly patron alleged she had been looking straight ahead at the doors and steps in front of her, rather than at the ground.
While the appellate court agreed the city (which was responsible for maintenance of the sidewalk, which had become cracked and deformed due to roots from an aging tree) should have foreseen that an elderly eye clinic patient would be looking ahead instead of down, the state high court disagreed.
Although plaintiff argued people generally look ahead instead of down, the court held that just because something “might conceivably occur” does not make it foreseeable.
“Were we to conclude, as plaintiff does, that simply looking elsewhere constitutes a legal distraction, then the open and obvious rule would be upended and the distraction exception would swallow the rule,” the court stated.
Prevailing in a trip-and-fall case is not a given. Contact an experienced attorney to ensure the best possible chance of success.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Additional Resources:
Bruns v. City of Centralia, Sept. 18, 2014, Illinois Supreme Court
More Blog Entries:
Henkel v. Norman – Homeowner Duty to Warn of Danger, Sept. 12, 2014, Manhattan Premises Liability Lawyer Blog
