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Duty of Care owed for Open and Obvious Dangers–New Nevada Supreme Court Position

Posted by: on Wed, Jan 16, 2013

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128 Nev., Advance Opinion 7 (Dec. 27, 2012)

IN THE SUPREME COURT OF THE STATE OF NEVADA

STEPHEN L. FOSTER,Appellant,

vs.

COSTCO WHOLESALE CORPORATION,
Respondent Legal OPINION

Summary of Facts:

During a trip to a Costco membership warehouse store, appellant Stephen L. Foster tripped and fell over a wooden pallet, which had been positioned in an aisle of the warehouse by a Costco employee.

Thereafter, Foster filed a complaint against Costco for injuries sustained from his fall. Costco subsequently moved for summary judgment. The district court granted summary judgment to Costco, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. Foster appealed.

Summary of Decision:

In its opinion, the last decision issued during 2012, the Nevada Supreme Court examined the legal evolution of a landowner’s duty of care to entrants on the landowner’s property and refined the current status of that duty in Nevada. Traditionally, a landowner had no duty to protect entrants on the landowner’s property from open and obvious dangers.

Nevada, along with the vast majority of jurisdictions, has since embraced an exception when the landowner should anticipate the harm despite the hazard’s open and obvious nature. By modifying the traditional rule, negligence laws throughout the country have progressed in favor of upholding the general duty of reasonable care. See Moody v. Manny’s Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) (“[A]n owner or occupier of land should be held to the general duty of reasonable care when another is injured on that land …. [and] determinations of liability should primarily depend upon whether the owner or occupier acted reasonably under the circumstances.”). In recognition of the continuing development of the law governing landowner liability, the Court adopted the rule set forth in the Restatement (Third) of Torts: Physical and Emotional Harm section 51, and consequently, the court concluded that a landowner owes a duty of reasonable care to entrants for risks that exist on the landowner’s property.

In accordance with this position, the court held that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner. Here, the Supreme Court found that the district court erred when it found as a matter of law that Costco did not breach a duty of care because the hazard created by the pallet was open and obvious to Foster. Questions remain as to whether the pallet over which Foster tripped was in fact an open and obvious condition, whether Costco acted reasonably under the circumstances by allowing a pallet to impede Foster’s path through the aisle without warning, and whether Foster failed to exercise reasonable self-protection in encountering the pallet. Accordingly, the Supreme Court reversed the district court’s summary judgment and remanded this case for further proceedings.

THE FACTS

In October 2005, Foster visited a Costco store in Henderson, Nevada, to purchase paper goods and groceries.

While searching for trash bags in the paper goods aisle, Foster’s left toe caught the corner of a wooden pallet, which was covered by a slightly turned box. Foster fell and sustained injuries. He subsequently sued Costco in district court, alleging that Costco was negligent in creating a dangerous condition and in failing to warn him of the existence of the dangerous condition. Foster claimed that Costco owed him a duty to maintain an establishment free of dangerous conditions, including exposed pallets throughout the aisles.

Foster’s deposition was taken, and Costco then filed a motion for summary judgment, contending that the presence of the pallets was open and obvious and that it was not liable for injuries arising from an open and obvious hazard. According to Costco’s summary judgment motion, it is undisputed that Foster was in the paper goods section of the warehouse shopping for, among other things, trash bags, when the incident occurred. Foster testified in his deposition that, as he entered the aisle, he saw approximately three pallets on the right side and two pallets on the left side. Each of the pallets had boxes on them. Foster observed a Costco employee moving boxes from the pallets onto the shelves. There were no barricades placed to warn customers or to prevent them from entering the aisle while the Costco employee was restocking the shelves.

Foster also testified that a slightly turned box was hanging over the edge of the pallet that caused his fall. Foster further stated that he was able to see some of the wood comprising the pallet in question and that he was aware that the subject pallet was obscured by a box. However, Foster claimed that he did not see the corner of the pallet.

Foster then testified that he looked at the Costco employee moving the boxes, looked up at the displayed products on the shelves, and when he walked around the employee and the pallet, stepped around the slightly turned box thinking that he had bypassed the pallet. But “somehow [his] left toe caught on the corner of the pallet,” and he fell. As a result of the accident, Foster sustained injuries to his left knee, right shoulder, and right-hand ring finger.

In opposing Costco’s summary judgment motion, Foster argued that there were material questions of fact as to whether the dangerous condition was obvious, because even though he could see some of the pallet underneath the boxes, he could not see the corner of the pallet due to the way the box was positioned. Foster also asserted that even if the condition was obvious, there were further material questions of fact as to whether Costco was liable in creating or subjecting him to the peril.

The district court granted Costco’s motion for summary judgment, finding that the peril created by the pallet was open and obvious to Foster, that the boxes partially concealing the pallet created notice to Foster of the potential hazard, and that Foster’s testimony demonstrated his comprehension of the dangerous condition. Citing Gunlock v. New Frontier Hotel, 78 Nev. 182, 185, 370 P.2d 682, 684 (1962), the district court concluded that Costco did not breach its duty of care because under the circumstances, it had no duty to warn Foster or to remedy the open and obvious condition. Therefore, the court concluded that Costco’s actions were not negligent.

LEGAL DISCUSSION ON APPEAL

The court took the opportunity to examine the development of the open and obvious doctrine and held that landowners are not free from the duty to exercise reasonable care solely because the danger posed was open and obvious. In doing so, the court adopted the approach taken by section 51 of the Restatement (Third) of Torts: Physical and Emotional Harm: a landowner owes a duty of reasonable care to entrants for risks that exist on the property. Thus, the fact that a dangerous condition is open and obvious does not automatically shield a landowner from liability but rather bears on whether the landowner exercised reasonable care with respect to that condition and issues of comparative fault.

Standard of Review on Appeal

This court reviewed the district court’s grant of summary judgment de novo, without deference to the findings of the lower court. Klasch v. Walgreen Co., 127 Nev. _, _, 264 P.3d 1155, 1158 (2011). As part of this de novo review, the court considered the evidence “in a light most favorable to the nonmoving party.” Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper only if no genuine issue of material fact exists “and the moving party is entitled to judgment as a matter of law.” Cervantes v. Health Plan of Nevada, 127 Nev. _, _, 263 P.3d 261, 264 (2011); see NRCP 56(c).

THE LEGAL HISTORY OF THE OPEN AND OBVIOUS DOCTRINE

The court then noted that the development of the open and obvious doctrine has roots in English and early American common law, and most likely derived from the political power of landowners prior to the twentieth century, the open and obvious doctrine eliminates landowner liability to business visitors resulting from open and obvious dangers.

Michalski v. Home Depot, Inc., 225 F.3d 113, 118-19 (2d Cir. 2000) (outlining the transformation of the open and obvious doctrine); see Restatement of Torts § 340 (1934) (providing that “a possessor of land is not subject to liability to his licensees … for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein”); James P. End, Comment, The Open and Obvious Danger Doctrine: Where Does It Belong in Our Comparative Negligence Regime?, 84 Marq. L. Rev. 445, 457 (2000) (“Landowner sovereignty resulted from the belief that landowners possessed the right to use their land as they so chose.”). “The rationale of the open and obvious doctrine is that the defendant should not be held liable for harm caused by a danger that was open and obvious to the person suffering the harm.” Robert A. Sedler, The Constitution, the Courts and the Common Law, 53 Wayne L. Rev. 153, 172 (2007).

The court explained that the open and obvious doctrine was widely criticized by legal scholars and courts as being too harsh, however, and courts began to depart from it in the mid-twentieth century. See James Fleming, Jr., Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L.J. 605, 628 (1954); Page Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U. Pa. L. Rev. 629, 642-43 (1952); see, Hanson v. Town & Country Shopping Center, Inc., 144 N.W.2d 870, 874 (Iowa 1966) (“To arbitrarily deny liability for open or obvious defects and apply liability only for hidden defects, traps, or pitfalls, is to adopt a rigid rule based on objective classification in place of the concept of the care of a reasonable and prudent man under the particular circumstances.”).

The court noted that in 1965, the Restatement (Second) of Torts was published, recognizing this trend and modifying its assessment of the open and obvious doctrine so that “[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts § 343A(1) (1965). As a result, jurisdictions throughout the country have retreated from strict application of the open and obvious doctrine, departing “from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions, and [moving] toward the standard expressed in section 343A(1) of the Restatement (Second) of Torts (1965).” Ward v. Kmart Corp., 554 N.E.2d 223, 231 (1990) (listing cases from state supreme courts that have adopted the Second Restatement approach); see Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 390 (Ky. 2010) (“the modern trend, as embodied in the Restatement (Second) of Torts, is the better position”); but see Jones Food Co., Inc. v. Shipman, 981 So. 2d 355, 363 (Ala. 2006) (holding that no duty was owed with regard to open and obvious dangers); Armstrong v. Best Buy Co., Inc., 788 N.E.2d 1088, 1091 (Ohio 2003) (same).

The court explained that under the Second Restatement, a landowner should anticipate, and is liable for failing to remedy, the risk of harm from obvious hazards when an invitee could be distracted from observing or avoiding the dangerous condition, or may forget what he or she has discovered, and the landowner has “reason to expect that the invitee will nevertheless suffer physical harm.” Restatement (Second) of Torts § 343A cmt. f (1965). This principle is known as the distraction exception to the open and obvious rule. Id.; see Kenneth R. Swift, I Couldn’t Watch the Ball Because I Was Watching the Ferris Wheel in Centerfield, 22 Ent. & Sports Law. Winter 2005, at 1, 34 (noting that comment f has been extensively applied by numerous jurisdictions). For example, a landowner should anticipate that, in certain circumstances, store displays will distract customers and potentially prevent them from discovering and avoiding even conspicuous dangers.

The general duty of reasonable care is the focus of the newly adopted Restatement (Third) of Torts: Physical and Emotional Harm section 51 (2012): [A] land possessor owes a duty of reasonable care to entrants on the land with regard to: (a) conduct by the land possessor that creates risks to entrants on the land; (b) artificial conditions on the land that pose risks to entrants on the land; (c) natural conditions on the land that pose risks to entrants on the land; and (d) other risks to entrants on the land when any of the affirmative duties … is applicable.

The court explained that the duty espoused in the newest iteration is similar to, and includes, both the general landowner’s duty imposed with regard to invitees in the Restatement (Second) of Torts section 343, and the “distraction exception” to the open and obvious rule reflected in the Restatement (Second) of Torts section 343A. Restatement (Third) of Torts: Phys. & Emot. Harm § 51 cmts. a and k (2012). However, the duty imposed in the Third Restatement is amplified, as it is extended to all entrants on the land (except for flagrant trespassers, see Restatement (Third) of Torts: Phys. & Emot. Harm § 52 (2012», not just invitees. Restatement (Third) of Torts: Phys. & Emot. Harm § 51 cmt. a (2012).1 Thus, under the Restatement (Third), landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of dangerous conditions

CONCLUSION

The court therefore reversed the judgment of the district court and remanded the matter for further proceedings consistent with this opInIon. The court further held that on remand, Costco’s alleged negligence should be determined pursuant to the Third Restatement.