The excesses of the open and obvious doctrine were on display in the 1st District decision last week in Brant v. Meijer Co.  The plaintiff had slipped and fallen on a puddle of water in a flower shop.  The court held that the condition was “open and obvious,” and thus affirmed summary judgment.

This is simply a horrible decision.  On deposition, the plaintiff testified that the puddle of water was “clear,” but that she could see it after she fell.  The court used this to conclude that “it was visible to an ordinary observer looking directly where she was walking.”

Well, that’s nice, but about the only people I’ve ever seen walking around and looking down at the ground where they were going happened to be wearing four overcoats in the middle of August and mumbling about how they’d just seen Jesus get off the loop bus.  Nobody normally — or normal — walks like that, and there’s a whole boatload of cases saying that you don’t have a duty to look down all the time, as this case, this one, and this one — the latter a Supreme Court case, no less — show.  To top it off, in Brant reaching the “open and obvious” issue was totally unnecessary:  the court noted that the plaintiff failed to prove that the storeowner had notice of the presence of the water, and could easily have decided the case on that basis.

Brant continues the unfortunate trend among appellate courts with respect to the “open and obvious” doctrine:  the test becomes whether the condition was “observable.”  As the facts in Brant make clear, observing a clear water puddle on the floor is a lot easier when you’re sitting there trying to figure out what you just slipped on.  The test should be whether the object was discernible by the plaintiff through the use of ordinary care.  Just because something could be seen doesn’t mean it should have been seen.

What’s more, Brant exposes some of the intellectual fault lines of the open and obvious doctrine.  First, there’s the matter of when is open and obvious a question of law, and when is it a question of fact?  The difficulties are highlighted by this 2nd District opinion:

We agree that the existence of a duty is a question of law for a court to decide. As a result, whether a business owner owes a duty of care to protect customers against an open and obvious danger is for a court, not a jury, to resolve. Whether a given hazard is open and obvious, however, may involve a genuine issue of material fact, which a trier of fact must resolve.

To a certain extent, this doesn’t make sense.  “Whether a business owes a duty of care to protect customers against an open and obvious danger” isn’t a question for anyone to resolve, at least in a particular case; it’s already decided that he doesn’t owe one.  The real question is whether the particular hazard was open and obvious, and the doctrine itself provides little help in determining when that should be resolved by a court or by a jury.  That’s why you have one court reversing a summary judgment where the plaintiff slipped on a pallet in an aisle, and another court affirming it in virtually identical circumstances.

Which leads to the second problem:  whether the plaintiff, in the exercise of reasonable care, should have observed and apprehended the hazard is obviously a question of negligence, but the entire open and obvious doctrine is predicated on the question of duty, that is, that the storeowner has no legal duty to protect customers from open and obvious hazard.  That could be decided as a matter of comparative negligence — whether plaintiff’s negligence in failing to appreciate the hazard was greater than the storeowner’s negligence in creating it — but the doctrine doesn’t allow that.  From an analytical standpoint, you wind up comparing the negligence of the plaintiff to the duty of the storeowner, and that just doesn’t work.

The motivation for the open and obvious doctrine is easy to discern:  it is ridiculous for a plaintiff to recover for an injury which he could easily see and guard against.  But given the current climate of personal injury law, why shouldn’t juries be allowed to make those determinations, instead of judges?  Is the judges’ “gatekeeper” function really necessary?  It’s hard to imagine juries finding a plaintiff less than 50% negligent — the cutoff for any recovery — if the condition truly is open and obvious.  Going back to handling this issue through a comparative negligence analysis would probably lead to the same results, would be more intellectually consistent and coherent, and would help restore courts and juries to the respective roles they were intended to perform.