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Not so open and obvious?

Back about seven years ago, ten-year-old Shayla Uddin drowned in the swimming pool of an Embassy Suites in Columbus.  The pool was only five feet deep, but the water was "milky," according to all the witnesses; one testified that when she'd been in the pool, she'd been unable to see her feet.  Shayla had apparently been on the bottom for about 30 minutes when someone discovered her by accidentally stepping on her body.

The parents brought suit, but were kicked out on summary judgment, the trial court holding that the swimming pool was an "open and obvious" danger.  In a 2-1 decision, the court of appeals reversed.  The hotel appealed, and the Supreme Court agreed to review it.  A good decision, since the case offered the opportunity to clarify two significant issues.

The first is the question of the effect of a violation of administrative regulations on the open and obvious doctrine.  (Not surprisingly, there's a reg which deals with the required degree of clarity in a swimming pool, which the hotel arguably violated.  It specifies that the water must be sufficiently clear "that a black disc, six inches in diameter, is readily visible when placed on a light field at the deepest point of the pool and is viewed from the pool side."  Who comes up with this stuff?)  A violation of a legislative enactment is, of course, negligence per se, and it takes the case out of the open and obvious doctrine because, as this 8th District case points out, the doctrine is intended to relieve the landowner of a duty to warn, and he should not be relieved of that duty if the legislature has specifically imposed that duty by statute.  

However, there's a difference between a statute and an administrative regulation, at least according to our Supreme Court.  Back in 1998, they ruled that since legislators are elected and bureaucrats aren't, the pronouncements of the former should count more than the latter:  thus, while violation of a statute is negligence per se, violation of an administrative regulation is merely evidence of negligence.  So how does this square with the open and obvious doctrine?  That would be one question for the Supreme Court to answer. 

The other would be the applicability of the doctrine to minors.  The 10th District had reviewed the case law, and found that it had even said in an earlier decision that the doctrine applied to both adults and minors.  That case, though, involved an eighteen-year-old who'd drowned in a swimming pool.  There have been some other cases which have discussed the issue, like those contained in the last couple of paragraphs of this opinion from the same court, but nothing definitive one way or the other.

And certainly, there's some strong arguments both ways.  As noted, the doctrine's based on the idea that a landowner has no duty to warn others of dangers which should be apparent to them.  But what's "apparent" to an adult might not be apparent to a child.  An adult looking at the cloudy water in a swimming pool might appreciate that if they were to wind up on the bottom, nobody would be able to see them.  That thought process might easily be beyond the capabilities of a ten-year-old.

On the other hand, once you cross that line, it's difficult to figure out where to draw the next one.  What about a slow fourteen-year-old or a precocious child half that age?  In Ohio, a child between seven and fourteen is presumed incapable of contributory negligence (the presumption is conclusive for children under that age), but how does the concept of the invitee's negligence even come into play, when the doctrine focuses on the concept of the landowner's duty?  How do you compare duty and negligence?  And what would be the practical effect of acceptance of a "child exception" to the doctrine?  As I mentioned last week, courts have fairly consistently held that a pallet or other obstruction left in the aisle of a store is open and obvious, thus precluding liability.  But what about a toy store which leaves an obstruction in an aisle, knowing that small children might be running around in the store?

As I said, the impending Supreme Court review would give the Court an excellent opportunity to decide these two important questions, and perhaps confront and resolve some of the intellectual inconsistencies in the doctrine.

So last week the Court -- or, at least, four of the judges on it -- changed its mind and dismissed the appeal as having been improvidently allowed.

Well, maybe next time.

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