Opinion
10CVC-11522
04-25-2013
Marlene Porter, Plaintiff v. Hyatt Corporation, et al., Defendants
DECISION AND ENTRY DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FILED 7/30/2012
Defendants' 7/30/2012 Motion for Summary Judgment is DENIED.
Standard of Review applicable to a Motion for Summary Judgment
Summary judgment may be awarded only if (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds, construing the evidence most strongly in favor of the nonmoving party, can come to but one conclusion which is adverse to the nonmoving party. Hood v. Diamond Products, Inc . (1996), 74 Ohio St.3d 298, 1996 Ohio 259, 658 N.E.2d 738. Because summary judgment is a procedural device to terminate litigation, it must be awarded with caution. Id. Doubts must be resolved in favor of the nonmoving party. Id.
The Ohio Supreme Court has ruled that " * * * the moving party bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case." Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 1996 Ohio 107, 662 N.E.2d 264. The moving party must point to Civ.R. 56(C) evidence in the record (i.e., pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence or stipulations of fact) that demonstrates the absence of any genuine issues of material fact. Id. at 293. State ex rel. Leigh v. State Emp. Relations Board (1996), 76 Ohio St.3d 143, 146, 1996 Ohio 416, 666 N.E.2d 1128. If the moving party meets this test, the nonmoving party must rebut the motion with specific facts and/or affidavits showing a genuine issue of material fact that must be preserved for trial. Id.
Analysis of the Motion for Summary Judgment
Defendant's argue that they cannot be held liable in this case because the ramp plaintiff tripped over was " open and obvious" . An owner of a premises is under no duty to warn business invitees on their premises if the danger is so obvious that the hazard itself serves as a warning to that invitee. Brinkman v. Ross (1993) 68 Ohio St.3d 82, 1993 Ohio 72, 623 N.E.2d 1175. The Franklin County Court of Appeals state in Szerszen v. Summit Chase Condos . (Franklin App), 2010 Ohio 4518, P10,
Where only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious may be decided by the court as a matter of law. Klauss v. Marc Glassman, Inc ., 8th Dist. No. 84799, 2005 Ohio 1306, P18, citing Anderson v. Hedstrom Corp . (S.D.N.Y.1999), 76 F.Supp.2d 422, 441; Vella v. Hyatt Corp. (E.D.Mich.2001), 166 F.Supp.2d 1193, 1198; Parsons. However, where reasonable minds could differ with respect to whether a danger is open and obvious, the obviousness of the risk is an issue for the jury to determine. Id. , citing Carpenter v. Marc Glassman, Inc. (1997), 124 Ohio App.3d 236, 240, 705 N.E.2d 1281; Henry v. Dollar Gen. Store, 2d Dist. No. 2002-CA-47, 2003 Ohio 206; Bumgardner v. Wal-Mart Stores, Inc., 2d Dist. No. 2002-CA-11, 2002 Ohio 6856.
In Thompson v. Ohio State Univ. Physicians, Inc ., the court stated, " Open-and-obvious dangers are those not hidden, concealed from view, or undiscoverable upon ordinary inspection." Thompson v. Ohio State Univ. Physicians, Inc . (Franklin, May 12, 2011), 2011 Ohio 2270, citing Lydie v. Lowe's Cos., Inc ., 10th Dist. No. 01AP-1432, 2002 Ohio 5001. The court continued, " A person does not need to observe the dangerous condition for it to be an " open-and-obvious" condition under the law; rather, the determinative issue is whether the condition is observable." Thompson , Citing Sherlock v. Shelly Co ., (2007), 2007 Ohio 4522. Defendants have cited several other cases that repeat this language.
While this may seem unambiguous at first glance, what does it really mean? If a hazard would be observed on ordinary inspection once in a million times, is it " observable" ? Logically it is. But such a hazard would not be " open and obvious" by any stretch of the ordinary meanings of those words. Consequently, when the Court of Appeals said " observable" it must have meant " adequately observable."
In order to determine what would be " adequately observable", consider the following scenario. Imagine that, at the entrance to a store there is a hole which is one hundred feet deep. Imagine that the hole is so wide that only one in one hundred people fail to observe it as they enter or exit the store. On average, only one in five of those who fail to observe the hole actually fall into it and are killed. So, on average, one in five hundred shoppers who enter or exit the store fall into this hole and are killed. Imagine 1000 people enter or exit the store every day. Consequently, on average, two people die by falling into the hole each day.
Are we to conclude that, since the hole is " observable" by 99 out of 100 shoppers, the shop owner has no duty to do anything to remove the hazard or warn his customers? Clearly, that would be a preposterous result. Surely, the owner does have a duty and the open and obvious doctrine must be construed so as to allow for such a duty. This Court must believe that the Court of Appeals would prefer a reasonable interpretation of its precedents that would allow for such a duty. How ought we proceed to answer the question of whether a hazard is " adequately observable" so that the " open and obvious" doctrine should be applied?
Consider the original rationale for the open and obvious doctrine. " An owner of a premises is under no duty to warn business invitees on the premises if the danger is so obvious that the hazard itself serves as a warning to the invitee." Brinkman . When is the danger " so obvious" that it " serves as a warning" ? The " open and obvious" doctrine is not an affirmative defense. Rather, it is simply the logical consequence of the owner's duty to exercise ordinary care to protect business invitees. Hence, it should be understood in that light. In order for the hazard to adequately " serve as a warning" of the hazard, it must be so obvious that a prudent owner of a premises exercising ordinary reasonable care would think that the hazard serves as an adequate warning negating the need for any further protective action. Consequently, a hazard is " adequately observable" so as to be " open and obvious" if a prudent owner of a premises exercising ordinary reasonable care would think that the hazard serves as an adequate warning under the circumstances and conclude that there is no need for any further protective action.
Defendants did not point to adequate evidence to meet their initial burden for purposes of summary judgment of showing the absence of any genuine issue of material facts as to whether the hazard was so readily observable that a prudent owner of a premises exercising ordinary reasonable care would think that the hazard itself serves as such an adequate warning under the circumstances that there is no need for any further protective action.
As further justification of this Court's legal conclusion about the meaning of the open and obvious hazard doctrine, this Court repeats below an analysis of that doctrine it issued in a previous case:
A review of the purposes of tort law and the function of the " open and obvious hazard doctrine" within that law will help to more accurately define the limits of what counts as " open and obvious" .
The Franklin County Court of Appeals has stated that " the purpose of tort law and litigation is to allow the injured party to recover damages and to achieve a desirable social result." Gates v. Brewer (1981), 2 Ohio App.3d 347, 349, 2 Ohio B. 392, 442 N.E.2d 72. With regard to achieving a desirable social result, the Franklin County Court of Appeals has stated that, " the tort system exists, in part, to encourage and discourage certain behaviors." Roe v. Heap , 2004 Ohio 2504, P112. Personal injury negligence law as it relates to owners and/or occupiers of land generally aims at encouraging owner/occupiers to undertake actions that a reasonable, prudent owner/occupier would undertake to avoid injury to invitees on the premises controlled by the owner/occupier. Accordingly, if the doctrine regarding " open and obvious" dangers is construed as relieving an owner/occupier of the requirement that it exercise ordinary care in certain situations, then the doctrine serves to defeat this essential purpose of personal injury tort law. If on the other hand, the doctrine is construed so that it accurately reflects what a reasonable, prudent owner/occupier exercising ordinary care would do in various circumstances, then the doctrine is consistent with the purpose of encouraging behavior that would achieve the desired social result (avoidance of those personal injuries that result from the failure to undertake actions that a reasonable, prudent owner/occupier would undertake).
It should be presumed that higher courts do not generally intend to defeat the essential purposes of tort law. Consequently, any ambiguities in the language used by those courts should generally be construed in favor of construing the " open and obvious" hazard doctrine so as to require that owner/occupiers exercise the ordinary care that a reasonable, prudent owner/occupier would exercise.
An owner/occupier ordinarily owes its business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition. Armstrong v. Best Buy Co . (2003), 99 Ohio St.3d 79, 80, 2003 Ohio 2573, 788 N.E.2d 1088. Paschal v. Rite Aid Pharmacy, Inc . (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474; Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 12 O.O.3d 321, 390 N.E.2d 810. The owner/occupier must maintain the premises in a reasonably safe condition so that the invitee is not unnecessarily and unreasonably exposed to danger . Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 Ohio B. 267, 480 N.E.2d 474. Ruz-Zurita v. Wu's Dynasty, Inc . (Franklin), 2008 Ohio 300, P10. Thus, in determining whether an owner/occupier has exercised " ordinary care", one should determine whether the invitee was " unnecessarily and unreasonably exposed to danger" .
An owner's/occupier's obligation to use reasonable care includes the duty to warn invitees of dangerous conditions known to or reasonably ascertainable by the owner which an invitee should not be expected to discover or protect himself or herself against. Jackson v. Kings Island (1979), 58 Ohio St. 2d 357, 359, 390 N.E.2d 810. Felder v. Victory Fitness Ctr . (7/16/1998), Franklin App. No. (Ohio Ct. App., Franklin County July 16, 1998). Consequently, an owner/occupier must warn an invitee of latent defects of which the occupier is, or should be aware, aware. Perry v. Eastgreen Realty Co . (1978), 53 Ohio St.2d 51, 52, 372 N.E.2d 335. Beck v. Camden Place at Tuttle Crossing (Franklin), 2004 Ohio 2989, P29. However, since the duty to warn applies to all " dangerous conditions known to or reasonably ascertainable by the owner which a patron should not be expected to discover or protect himself or herself against", the duty requires that an owner/occupier warn invitees of any " dangerous conditions known to or reasonably ascertainable by the owner which an invitee should not be expected to discover or protect himself or herself against", even if they are not " latent" defects .
--------- Notes: An occupier must also inspect the premises to discover possible dangerous conditions of which the occupier is unaware and is charged with constructive knowledge of defects that a reasonable inspection of the premises would have revealed. Perry at 52. Beck at P29. A " [d]efendant has a duty to undertake reasonable inspections, not to inspect everything that might conceivably cause injury." Beck at P29. ---------
This analysis suggests that there are three categories of dangerous conditions that are relevant to the duty to warn.
In defining those three categories of dangerous conditions, the first distinction is between dangerous conditions that are latent and those which are not latent. A dangerous condition is latent if it " is hidden, concealed and not discoverable by ordinary inspection, that is, not appearing on the face of a thing and not discernible by examination." McCoy v. Kroger Co . (Franklin), 2005 Ohio 6965, P9. Potts v. Smith Constr. Co . (1970), 23 Ohio App.2d 144, 148, 261 N.E.2d 176. In contrast, a dangerous condition is not latent if it is not hidden or concealed, and is discoverable by ordinary inspection, that is, it appears on the face of a thing and is discernible by examination.
Within the category of dangerous conditions that are not latent, the analysis above suggests a second distinction between dangerous conditions " which a patron should not be expected to discover or protect himself or herself against", and dangerous conditions which an invitee should be expected to discover and protect himself or herself against. The duty to warn applies to the first sort of dangerous condition, but not to dangerous conditions which an invitee should be expected to discover and protect himself or herself against.
The three categories of dangerous conditions that have been identified by these two distinctions provide the framework for understanding the " open and obvious" hazard doctrine. The doctrine states that a premises-owner owes no duty to persons entering those premises regarding dangers that are open and obvious. Armstrong v. Best Buy Co . (2003), 99 Ohio St.3d 79, 80, 2003 Ohio 2573, 788 N.E.2d 1088. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 Ohio Op. 2d 96, 233 N.E.2d 589, paragraph one of the syllabus. The rationale underlying this doctrine is " that the open and obvious nature of the hazard itself serves as a warning" . Armstrong at 80. Accordingly, the words " open and obvious" must be defined so that they apply only to hazards for which the " nature of the hazard itself serves as a warning" . Furthermore, since the courts have employed two separate words for this doctrine, " open" and " obvious", it is likely that they intended that two separate concepts be applied in the determination of whether the hazard itself serves as a warning. Thus, an owner/occupier's duty to warn would apply to a hazard which is " open", but not " obvious" .
In discussing three categories of dangerous conditions above, this Court noted that an owner/occupier is not required to warn invitees of a dangerous condition if the condition has two features:
(1) the dangerous condition is not latent, or in other words, it is not hidden or concealed, and is discoverable by ordinary inspection, that is, it appears on the face of a thing and is discernible by examination, and
(2) The dangerous condition is such that an invitee should be expected to discover it and protect himself or herself against it.
Upon reflection, it becomes apparent that the words " open" and " obvious" correspond to these two features.
A hazard is " open" if the hazard is not hidden or concealed, and is discoverable by ordinary inspection, that is, it appears on the face of a thing and is discernible by examination. This definition appears to provide a clear guide for determining whether a hazard is " open" .
A hazard is " obvious" if an invitee should be expected to discover and protect himself or herself against the hazard. This definition leads to a further question: when should an invitee be expected to discover and protect himself or herself against a hazard?
There are two different alternative strategies for answering this question. One approach can be called the " best results" approach. The other could be called the " normative" approach.
Under the " best results" approach, the guiding public policy is the goal of eliminating unnecessary and unreasonable risks of significant injury. This public policy is evidenced by the fact that the law imposes a duty of ordinary care on owner/occupiers of land which requires them to maintain their premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy, Inc . (1985), 18 Ohio St.3d 203, 18 Ohio B. 267, 480 N.E.2d 474. Ruz-Zurita v. Wu's Dynasty, Inc . (Franklin), 2008 Ohio 300, P10. Since, as we have seen, that duty of ordinary care is the basis of the duty to warn and the related open and obvious hazard doctrine, it is appropriate that the goal of eliminating unnecessary and unreasonable risk of significant injury should control our interpretation of that doctrine. Given this policy purpose, it follows that an owner/occupier should " expect" that an invitee will discover and appreciate a hazard only if there is no significant likelihood that some invitee will fail to discover and appreciate the hazard. Whenever there is a significant likelihood that some invitee will fail to discover and appreciate the hazard, our public policy goal would require that the owner/occupier should not expect its invitees to recognize the hazard, but rather the owner/occupier should entertain a reasonable uncertainty as to whether some invitee(s) will fail to discover the hazard.
The same point can be made by considering the effect of the " foreseeability" of an injury on the determination of whether a hazard is open and obvious. The existence of a duty depends on the foreseeability of the injury. Menifee v. Ohio Welding Products, Inc . (1984), 15 Ohio St.3d 75, 77, 15 Ohio B. 179, 472 N.E.2d 707. The Franklin County Court of Appeals has drawn the inference that, " To determine whether a danger was open and obvious, we apply the foreseeability test..." Boroff v. Meijer Stores Ltd. P'ship . (Franklin), 2007 Ohio 1495, P10.
The test for foreseeability is whether a reasonably prudent person would anticipate that an injury to someone was likely to result from the performance or nonperformance of an act. Menifee at 77. Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505. The foreseeability of harm usually depends on the defendant's knowledge. Menifee at 77. Burstion v. Chong-Hadaway, Inc . (Mar. 2, 2000), Franklin App. No. 99AP-701.
In this context, the word " likely" means " significantly likely" rather than " more likely than not" . Where one person's action or inaction would subject another to a 40% probability of death, we would certainly not say that the death was unforeseeable merely because the probability of death was 40% rather than 51%. A hazard that gives rise to a 40% probability of death is an extraordinarily substantial hazard. Anyone exercising ordinary care (care which is in fact ordinary) would never ignore such a high probability of death merely because it is less than 50%. As indicated earlier, the duty of ordinary care imposed on owner/occupiers requires them to maintain their premises in a reasonably safe condition so that the invitee is not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy, Inc . (1985), 18 Ohio St.3d 203, 18 Ohio B. 267, 480 N.E.2d 474. Ruz-Zurita v. Wu's Dynasty, Inc . (Franklin), 2008 Ohio 300, P10. This duty would be violated by unnecessarily subjecting invitees to significant hazards even if the probability of serious injury or death is less than 51% since it is unreasonable to do so. One must conclude that the word " likely" in the definition of " foreseeable" means " significantly likely" rather than " more likely than not" since the purpose of using the word " foreseeable" in " foreseeable injuries" is to identify the sorts of injuries that a person who is in fact exercising ordinary care would seek to avoid in the absence of justification or excuse for doing otherwise.
If we are to follow the Franklin County Court of Appeals in Boroff , and apply the foreseeability test to determine whether a hazard is " open and obvious", we must ask whether a reasonably prudent person, with defendant's knowledge, would have anticipated that it was significantly likely that someone would be injured as a result of failing to discover and appreciate the hazard. In answering this question, a reasonably prudent person would consider the various possible circumstances that might arise and interfere with the discovery and appreciation of the hazard. The hazard is " open and obvious" if and only if a reasonably prudent person with the defendant's knowledge, after giving reasonably prudent consideration to the matter, would anticipate that it is not significantly likely that someone would be injured as a result of failing to discover and appreciate the hazard.
In summary, a hazard is " obvious" if an invitee should be expected to discover and protect himself or herself against the hazard. This definition leads to the further question: when should an invitee be expected to discover and protect himself or herself against a hazard? The first approach to answering this question, the " best results" approach, begins by recognizing that an essential purpose of personal injury law is to achieve a desirable social result by encouraging and discouraging certain behaviors. More specifically, premises liability laws, as they relate to businesses and their invitees, aim at the elimination of unnecessary and unreasonable injuries. To achieve that result, the law imposes a duty of ordinary care on owners and/or occupiers of land. The " best results" approach to defining the " open and obvious" hazard doctrine realizes that the doctrine should not be defined so that it operates as an exception to the duty of ordinary care since the " open and obvious" hazard doctrine would then serve to defeat the essential purpose of this area of the law. Rather, the doctrine should operate as a corollary to the duty of ordinary care, relying on the duty of ordinary care itself to define what sorts of hazards are so open and obvious that a reasonably prudent person would conclude that the hazards themselves provide an adequate warning of their own presence so that reliance upon them as a warning of their own presence would not significantly increase the likelihood of injury as compared to the likelihood of injury if an adequate warning were posted. The " best results" approach yields the conclusion that a hazard is " open and obvious" if and only if a reasonably prudent person with the defendant's knowledge would anticipate, after giving reasonably prudent consideration to the matter, that it is not significantly likely that someone will be injured as a result of failing to discover and appreciate the hazard.
The alternative to the " best results" approach is the " normative" approach. Under this alternative approach, the owner/occupier is allowed to " expect" that invitees will conform to some normative standard without regard to the extent to which invitees actually do conform to that standard. The normative standard would pertain to how observant an invitee should be. If a hazard would have been observed by an invitee who satisfied that normative standard, then the hazard is said to be " open and obvious" and the shop keeper is relieved of any duty to exercise ordinary care in protecting his invitees form such hazards.
Where courts employ this approach, this Court has seen courts suggest two different normative standards with regard to what invitees should be expected to observe.
Some courts have used language that could be understood as suggesting that an invitee should be expected to observe any hazard which is not a latent (hidden) hazard. For example, one court has said, " Open-and-obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection" . Parsons v. Lawson Co . (1989), 57 Ohio App.3d 49, 50-51, 566 N.E.2d 698. Another court has said, " the determinative issue is whether the condition is observable." Lydic v. Lowe's Cos., Inc ., Franklin App. No. 01AP-1432, 2002 Ohio 5001, at P10. One could understand these words as implying that a hazard is " open and obvious" if and only if it is an " open" hazard. In that case, the use of the word " obvious" would be superfluous. If a hazard is " open", then it would be deemed to be " obvious" . However, since the courts that invented the open and obvious doctrine probably had a reason for using the word " obvious" we should be skeptical of any interpretation of the doctrine that makes the word " obvious" superfluous. Since the Ohio Supreme Court continues to refer to the open and obvious doctrine as applying to hazards that are both " open and obvious", one must conclude that the word " obvious" is not superfluous, and that therefore, the doctrine only applies where a hazard was both open and obvious.
It would be highly unrealistic to suggest that invitees should be expected to actually discover any hazard that are " observable" or " discoverable upon ordinary inspection" if we understand the words " observable" and " discoverable" as referring merely to the possibility that something might be discovered upon ordinary inspection or observed. This amounts to expecting invitees to being hyper-observant. No one even comes close to observing everything in their surroundings that could be observed or could be discovered by ordinary inspection. As I sit here working on my laptop, there is a book case within my field of vision that contains over a hundred books. Each of those books by itself could be observed or could be discovered by ordinary inspection. Nevertheless, if one were to randomly pick any one of those books, it is unlikely that I will observe that book as I sit here today working on this decision. Likewise, it is unlikely that I would discover that book by an inspection that would be " ordinary" in light of what I am currently doing. I look up and notice Cornford's The Republic of Plato . Yet I still do not observe or discover which books are next to it.
Thus, if we require ourselves to be realistic we must concede that people observe or discover only a small portion of all the things that might be discovered by an ordinary inspection or which could be observed. Were I to set out now to observe everything that could be observed in my surroundings, I would not get back to writing this decision before the day ends. Put in slightly different words, were I to set out to discover each thing in my surroundings that could be discovered by an ordinary inspection, I would be conducting ordinary inspections all day.
I should not be expected to ignore my work in order to begin a project of observing everything that is observable in my surroundings. Likewise, invitees to an owner/occupier's premises should not be expected to ignore their other appropriate purposes in order that they might observe everything that could be observed on the premises.
Clearly, it is a mistake to assume that the word " obvious" does not add a significant limitation upon what hazards may be considered " open and obvious" . It must be more than merely possible that a hazard will be discovered upon ordinary inspection or observed before that hazard counts as both " open" and " obvious" . To be " obvious", the hazard must have such characteristics as would reliably attract one's attention to it in spite of the countless multitude of other observable/discoverable items in one's surroundings, each of which could occupy one's attention. Attention attracting features include features like large size, bright hot colors, symbols associated with danger like a skull and cross bones or an exclamation mark, eye level position, loud sounds, scream level pitch, etc.
This Court is not aware of any adequate justification for relieving an owner/occupier of the duty of ordinary care with regard to protecting that owner/occupier's invitees from hazards that only a hyper-observant person would have observed. This Court has not found any such justification in the cases that arguably place such a high expectation on invitees. Placing such unrealistically high expectations on invitees would have the result of placing very low expectations on owner/occupiers. When a duty of extraordinary care is imposed on the invitee as a condition for being protected by the owner/occupier, the owner/occupier is relieved of the duty to exercise ordinary care in all cases where the invitee would be injured as a result of the failure to exercise extraordinary care. As a result, personal injury tort law, as it applies to owner/occupiers, will largely fail in its essential purpose of encouraging owner/occupiers to protect their invitees from unnecessary and unreasonable injuries.
The language in those cases that might be read as requiring invitees to be hyper-observant can be given a more reasonable interpretation. The word " observable" or " discoverable", rather than referring to the mere possibility that the hazard might be observed or discovered, can be construed as meaning something like " would generally be observed/discovered" or " would always be " observed/discovered" . If one opts for " would generally be observed/discovered", then a further issue arises as to how to determine in a principled way whether a given hazard is sufficiently observable or discoverable to count as " observable" or " discoverable" . Rather than clarifying what counts as " open and obvious", we find that the issue has merely returned in slightly different words.
As an alternative to expecting invitees to be hyper-observant, some courts have suggested that, when determining whether a hazard is open and obvious, invitees should be expected to exercise ordinary care when observing their surroundings. Specifically, when determining whether a hazard is open and obvious, " ...the crucial inquiry is whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition." Ruz-Zurita v. Wu's Dynasty, Inc . (Franklin), 2008 Ohio 300, P10. Kidder v. Kroger Co ., Montgomery App. No. 20405, 2004 Ohio 4261, at P11, citing Youngerman v. Meijer, Inc . (Sept. 20, 1996), Montgomery App. No. 15732. In other words, these Courts are suggesting that a hazard is obvious if one would have to be negligent in order to fail to observe the hazard.
It is of course appropriate in some circumstances to have a normative " expectation" that people should exercise " ordinary care under the circumstances" when observing their surroundings. However, it is unreasonable to expect that, as a matter of fact , people will always exercise " ordinary care under the circumstances." It is quite foreseeable that people will be negligently unobservant a significant percentage of the time. If we define open and obvious hazards as those which persons should observe, rather than those which invitees are not significantly likely to fail to observe, the consequence will be that we shall not require owner/occupiers to exercise ordinary care to protect their invitees from many foreseeable, unnecessary and unreasonable injuries. As indicated earlier, this would defeat an essential purpose of this area of the law.
Nothing in this Court's analysis means that a plaintiff will be able to recover from a defendant when the plaintiff's own fault in failing to notice the hazard is greater than the landowner's fault in failing to remove or warn of the hazard. The law of comparative negligence already prevents such a plaintiff from recovering anything and even limits the recovery of a negligent plaintiff whose fault was not as great as the landowner's fault.
It Is So Ordered.