Opinion
No. 04C-02-183-FSS.
December 8, 2006.
ORDER Upon Defendant`s Motion for Summary Judgment DENIED.
Defendant asks for summary judgment in this personal injury case. Plaintiff was a business invitee at Defendant's apartment complex. As Plaintiff walked down an outside, basement staircase, a wood tread gave way. Plaintiff fell and was injured. With discovery complete, Defendant filed this timely motion claiming as a matter of law, alternatively, that:
• The danger was open and obvious;
• Defendant had no reason to know that the stairs were defective;
• There is no evidence that Defendant failed to inspect the stairs; and
• Plaintiff exceeded the scope of his invite onto Defendant's property.
Having reviewed the motion and its attachments, the court appreciates Defendant's arguments. For example, the court understands that Plaintiff took it upon himself to obtain the key and unlock the Bilco door. Upon opening the Bilco door, Plaintiff should have been able to see that the bottom treads were broken. While those facts point to a potentially powerful defense, they are not dispositive.
It remains to be seen whether, under the totality of the circumstances, Defendant paid close enough attention to its stairs, whether Defendant properly controlled access to the basement stairs, and whether Plaintiff properly looked out for his own safety. In short, it appears that this case is an excellent one for a jury to consider. After the evidence has been presented, upon timely request, the court will further consider dispositive motions.
Meanwhile, for the reasons provided above, Defendant's Motion for Summary Judgment is DENIED. Therefore, the court will remove the oral argument from its calendar for December 13, 2006. Again, the court reminds the parties that this is now the oldest case on the court's civil docket. Accordingly, as the court has mentioned in prior correspondence, it will look with the greatest disfavor on another attempt to postpone the January 29, 2007 trial date.