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Open and obvious: the "active negligence" doctrine

Another attempt to avoid the consequences of the "open and obvious" doctrine came to naught in the 6th District this past week, in Black v. Discount Drug Mart.  Ms. Black was the victim in what is apparently happening with astonishing frequency in stores throughout Ohio:  unsuspecting customers tripping over pallets of merchandise that have been left sitting in the aisles.

In Ms. Black's case, she turned the corner of the cosmetics counter and promptly fell over a red plastic bin which was filled with merchandise for restocking the store shelves.  Her case got bounced on summary judgment, despite her arguing the "active negligence" exception to the open and obvious doctrine.

What's that?  It stems from a 10th District case in 2005Simmons v. Am. Pac. Enter., where a truck driver had pulled into a dock to unload merchandise.  One of the employees put a dock plate to cover the gap between the truck and the dock.  When the driver had finished unloading, he stepped backwards to return to the truck, thinking that the plate was still there.  It wasn't -- the employee had removed it.  The driver sued, got summaried out, but the appellate court reversed, drawing a distinction between "static conditions" and "active negligence":

The distinction between a static and dynamic forms of negligence is legally significant, as it directly correlates to the two separate and distinct duties an occupier owes its business invitees: (1) static conditions relate to the owner's duty to maintain its premises in a reasonably safe condition, including an obligation to warn its invitees of latent or hidden dangers, while (2) active negligence relates to the owner's duty not to injure its invitees by negligent activities conducted on the premises.

The Simmons court acknowledged the amount of time elapsing between the act of negligence and the plaintiff's injury could be significant, and that's what the Black court hung its hat on in affirming summary judgment: 

In the present case, unlike the dock plate in Simmons, there was no evidence that the bin had not been present in the aisle for a substantial amount of time. It had become a static condition. It was not a changing condition during appellant's visit to the store.

Of course, this presents another issue:  given that the store was the one moving for summary judgment, and that it had superior access to information concerning when the bin was placed there, shouldn't it have had the burden of proving that the bin had been there a sufficient period of time to constitute a "static condition"?

This, of course, reveals the problem with the Simmons court's reasoning:  The entire rationale for the open and obvious doctrine is that the landowner has no duty to warn an invitee of conditions which are clearly observable, so why should it matter whether the landowner has "actively" created those conditions?  Plus, given that the vast majority of cases arise where the owner has indeed created the conditions, why should it matter when the condition was created?  What's the justification for imposing liability when the employee put the bin there two minutes before the plaintiff came around the corner, and relieving the owner of liablity where the employee left it there for three hours?

Despite the defects in the reasoning, Simmons is a good case for plaintiffs to have, at least until that happy day arrives when the Ohio courts listen to me and decide they're going to get rid of the open and obvious doctrine and go back to using comparative negligence, as I suggested here.

Don't hold your breath.

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