Slight change in the Case Update this week. It seems that Lexis isn't getting the cases as quickly as it used to, and there's only about thirty decisions from the courts of appeals. I'll cover them next week, and stick to Supreme Court stuff this week.
If you're thinking of putting in a bid for the next nomination for the High Court, you might want to take a gander at the 172-page questionnaire Sonia Sotomayor had to fill out, which you can find here. The part about her favorite movies I found particularly interesting. And yes, I am making that up. The slim possibility of derailing Sotomayor's nomination depends upon the Court's anticipated reversal of her in the affirmative action case involving the New Haven firemen. That's one of the major decisions to be announced before the Court's term ends in two weeks; others include the application of Crawford to lab reports and the student strip-search.
Down in Columbus, the court finally handed down some decisions, for the first time in almost a month. Cundall v. US Bank presented a question about the statute of limitations with regard to a family trustee's self-dealing, which occurred in 1984. The plaintiffs argued that the statute of limitations for their lawsuit, filed in 2006, began running when the trustee died a year before that. Not so, said the court, since the parties were aware of the possibility of fraud when it occurred. The court emphasized that certainty isn't required for the limitations period to commence, but onlythat the known facts "would lead a fair and prudent man, using ordinary care and throughtfulness, to make further inquiry." In Medical Mutual v. Schlotterer, the insurance company sought patient records from the doctor, believing he'd engaged in some funky billing practices; the court reversed the 8th District's decision, and found that the the provisions in the insurance application in which the insured consented to the release of medical information to the insurer was sufficient.
The big decision, though, was Lang v. Holly Hill Motel. Lang and his wife had pulled into a motel and asked for a handicapped-accessible room because Lang was emphysemic and carried a portable oxygen tank. The best the motel could do was a room with only one step to it, the clerk told them. It had two, and Lang fell on the second one, breaking his hip. He died three months later. The estate sued, claiming that the motel was negligent because the steps lacked a handrail and exceeded the height limitations of the Ohio building code. The trial court had kicked the case out on summary judgment, finding the violation was open and obvious, and the 4th District had affirmed.
The Supreme Court had touched on this issue a few years back, in Robinson v. Bates, holding that the open and obvious doctrine didn't preclude liability for a violation of a landlord's statutory obligation to keep the rented premises in repair. That still left the question of whether violation of an administrative regulation should be treated the same way; back in 1998, in Chambers v. St. Mary's School, the court had drawn a distinction between statutes and administrative regs, holding that violation of the former constituted negligence per se, while violation of the latter was only evidence of negligence. The application of the open and obvious doctrine to administrative regs was squarely presented two years ago in Uddin v. Embassy Suites, but the court ducked it, dismissing the case as improvidently granted (case discussed here). Justice O'Connor dissented from that, arguing that the court of appeals judgment reversing the summary judgment granted by the trial court should have been affirmed, and that to hold otherwise "would defy the legal significance of administrative rules and suspend common sense." Chief Justice Moyer and Justice Pfeifer joined in the dissent.
Well. So in Lang, we have Chief Justice Moyer writing the majority opinion, holding that the open and obvious doctrine can be asserted as a defense to a claim of liability arising from a violation of the Ohio building codes. The basis for the decision is the same difference articulated in Chambers between statutes and administrative regulations: the first is an expression of legislative will, the second simply something a bunch of bureaucrats came up with, and so is not entitled to the same weight.
Two justices, Lanzinger and O'Connor, concurred only in the judgment, mainly because the plaintiffs hadn't contested the claim that the condition of the steps was open and obvious; if they had, those two would have found summary judgment inappropriate.
Pfeifer was the lone dissenter, and he took the court to task for ignoring the trend away from the open and obvious doctrine, arguing that it's a relic of the era when contributory negligence was a complete bar to a plaintiff's recovery. With the advent of comparative negligence, the appropriate method is to analyze the issue "with regard to foreseeability and gravity of harm, and the feasibility an availability of alternative conduct that would have prevented the harm."
I think there are a number of conceptual problems with the open and obvious doctrine, which are compounded by the willingness of trial and appellate courts to determine those issues on summary judgment, even when, as I discussed here, there's a legitimate question as to whether the condition was open and obvious in the first place. The concurring opinion offers a little bit of hope as to that last point, but a 6-1 decision affirming the decision doesn't offer much prospect that a reanalysis of the entire doctrine is coming anytime soon.