Saturday, January 23, 2010
Open and Obvious Doctrine
By Ohio Supreme Court Justice Paul Pfeifer
When Albert and Dorothy Lang arrived at the Holly Hill Motel one evening in early April 1999, they had no idea of the tragic ending that awaited them, nor any inkling of the legal journey that would begin that night and end here – at the Supreme Court of Ohio.
Because Albert was 78 years old, suffered from emphysema, and carried a portable oxygen tank, Dorothy requested a handicapped-accessible room. The motel didn’t have any such rooms available, but the front desk clerk told Dorothy they could have a room that required them to climb only one step.
They took that room, but soon discovered they actually had to climb two steps, and there were no handrails. With Dorothy’s help Albert climbed the first step, but on the second he fell and broke his hip. Albert ultimately died a little over three months after his fall.
After Albert’s death Dorothy sued the motel for negligence. In her complaint she alleged – and an expert witness confirmed – that the step Albert tripped over exceeded the height limitations in the Ohio Basic Building Code and that this created a dangerous condition that was exacerbated by the absence of handrails, which were also required under the Building Code.
The motel, and the builder who constructed the steps, moved for summary judgment – meaning they asked for judgment without a trial. They argued that even if the step was in violation of the code, it was nonetheless an open and obvious condition and that they therefore owed no duty of care to the Langs. The motion for summary judgment was granted.
Dorothy appealed the judgment. Her attorneys argued that the open-and-obvious doctrine is inapplicable and summary judgment is improper when the condition at issue is a violation of the Building Code.
What is the open-and-obvious doctrine? It’s a legal principle that says where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.
When the court of appeals reviewed the case, it determined that the step was an open and obvious condition, and that a Building Code violation does not negate the application of the open-and-obvious doctrine. The court of appeals therefore affirmed the judgment of the trial court.
After that, the case came before us for a final review. By a six-to-one vote our court affirmed the judgment of the court of appeals. How did the majority reach that conclusion?
Our court has previously held that exceptions to the open-and-obvious doctrine can be made when the landowner violated a statute – that is, a law passed by the General Assembly. But in this case, the majority drew a distinction between duties arising from statutes and duties arising from administrative rules, which “are created by administrative employees who act to implement the General Assembly’s public-policy decisions.”
Thus, the majority concluded that an exception to the doctrine does not apply to violations of the Building Code, which is an administrative rule. The majority also noted that there are innumerable administrative rules adopted each year and that it would be virtually impossible to comply with all of them.
I cast the dissenting vote because I disagreed with this conclusion. When Albert Lang was injured at the Holly Hill Motel, it was, at least in part, because of building code violations. But our court decided that his widow couldn’t proceed with a lawsuit because those violations that allegedly caused his injuries and hastened his death were open and obvious.
But in reaching that decision our court clings to the past and ignores a modern trend in the law. Many commentators and courts have recognized the unfairness of the open-and-obvious doctrine. One commentator has stated that “an undeniable legal error is committed every time a court bars recovery to an injured person based solely on the fact that the perilous nature of the alleged cause of harm was ‘apparent to all,’ without any consideration of the multitude of other factors which may justify or excuse the plaintiff’s conduct.”
I agree with the Supreme Court of New Mexico that “a risk is not made reasonable simply because it is made open and obvious to persons exercising ordinary care.” I also agree with that court’s holding that “it is for the jury to decide in virtually every case whether a dangerous condition on the premises involved ‘an unreasonable risk of danger to a business visitor.’”
In the Lang’s case, the dangers were open because they were not hidden, but they were not obvious. The presence or absence of a handrail is not obvious until one reaches for it and it is either there or not. The proper height of a step, as prescribed by building codes, is not obvious, especially to a nonprofessional, without taking measurements.
The building code violations that allegedly caused Albert’s injuries were open, but they were not obvious. This case presents an example of why the open-and-obvious doctrine should be abolished; it does not allow the consideration of all the factors that are relevant to determine negligence or fault.
Even so, it is not necessary to abolish the open-and-obvious doctrine to properly resolve this case. Building code violations are different from other open and obvious dangers because building codes are administrative rules and therefore “are to be given the force and effect of law.” In other words, “administrative agency rules are an administrative means for the accomplishment of a legislative end.”
But the majority opinion minimizes the standing of administrative rules, and clearly considers them not worthy of the force and effect of law. There is even a suggestion that because administrative rules are changed so frequently, compliance with them is virtually impossible and, therefore, apparently optional.
We should not have such a blasé attitude toward administrative rules. They are the law, unless unreasonable or contrary to statute, and compliance with them is mandatory; the failure to comply with them should have consequences.
Nevertheless, the majority ruled differently, and thus Albert’s widow was prevented from proceeding with her lawsuit.
EDITOR’S NOTE: The case referred to is: Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495. Case Nos. 2007-1222 and 2007-1370. Decided June 3, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.