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July 20, 2006

Remember all those fun nights down in the Flats?  Whatever happened to that?

A reminder of what happened with that was served up by the 8th District last week in Kirchner v. Shooters, where the court affirmed summary judgment for the defendant in a case brought by the estate of a 20-year-old who'd gotten drunk, wandered out on the pier by Shooters with the intent to relieve himself, and wound up falling into the river and drowning.  The court held that the "open and obvious" doctrine precluded recovery, and at first blush -- or even second or third -- it's hard to quibble with that conclusion:  there's nothing much more obvious than the dangers of falling into a river. 

The Ohio Supreme Court's 2003 decision in Armstrong v. Best Buy is usually cited as the source of the open and obvious doctrine, but the theory had been around a lot longer than that:  courts had been systematically throwing out cases for decades on the basis that some danger or other was so blatant that the plaintiff couldn't recover for injuries caused by it.  Then along came comparative negligence, and some courts started moving toward the idea the whole "open and obvious" thing was a question of fact that had to be hashed out by jurors, balancing the negligence of the landowner in creating the hazard against the negligence of the plaintiff in not apprehending it.

The Court in Armstrong put a stop to this, holding that the doctrine was based not on how much the plaintiff's negligence contributed to his injury, but on the concept of duty:  a landowner has no duty to warn a person of dangers which are open and obvious, and since negligence requires a breach of duty, if there isn't one, there isn't any negligence.

That sounds nice in theory, but Kirchner reveals some of the problems with it in practice.  The dangers of falling into a river might seem obvious, but not necessarily to a 20-year-old sloshed to the gills.  (Kirchner's blood/alcohol level was three times the legal limit, a good part of it acquired at Shooter's, despite the fact he was underage.)  Is it fair to absolve the defendant of a duty to warn the plaintiff of an "obvious" hazard when the defendant's own conduct might be partially responsible for the plaintiff not appreciating the obviousness of that hazard?

As I said, there's a fair amount of logic to the doctrine, whether one bases it on a duty-to-warn or on a comparative negligence theory.  Its intellectual coherence is a bit frayed around the edges, though, because it essentially depends on the notion that whether a danger is "open and obvious" can always be determined as a matter of law.  Next week, I'll take a look at some cases which show the flaws in that reasoning, and allow ways around the open and obvious doctrine.

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