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‘Open and Obvious Hazard’ Defense Applies Whether or Not Hazard Violated Building Code

2007-1222 and 2007-1370.  Lang v. Holly Hill Motel, Inc.  Slip Opinion No. 2009-Ohio-2495.
Jackson App. No. 06CA18, 2007-Ohio-3898.  Certified question answered in the negative and judgment affirmed.
Moyer, C.J., and Lundberg Stratton, O'Donnell, and Cupp, JJ., concur.
O'Connor and Lanzinger, JJ., concur in judgment only.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2495.pdf

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(June 3, 2009) The Supreme Court of Ohio ruled today that when a plaintiff’s injuries arise from a hazardous condition on a defendant’s property that constitutes a violation of the Ohio Basic Building Code, the property owner may assert the common law defense that the hazardous condition was “open and obvious,” and that the owner therefore had no legal duty to protect an invitee against it.

The Court’s 6-1 decision, authored by Chief Justice Thomas J. Moyer, affirmed a ruling by the 4th District Court of Appeals.

The case involved a civil suit filed by Dorothy Lang on behalf of the estate of her deceased husband, Albert Lang, against the Holly Hill Motel in the Jackson County Court of Common Pleas. The complaint alleged that Mr. Lang, who suffered from emphysema and carried a portable oxygen tank, fell while his wife was helping him ascend a two-step stairway in front of the couple’s motel room. Mr. Lang suffered a broken hip that required his hospitalization. He died three months later.

The complaint asserted that Mr. Lang’s fall resulted from the facts that the riser height of the two steps he had to climb at the motel was several inches higher than the maximum permitted by the Ohio Basic Building Code, and that there was no handrail, as also required by the building code, to help him maintain his balance or stop his fall. 

Holly Hill entered a motion for summary judgment in the trial court, arguing that because the height of the steps and absence of a handrail were open and obvious conditions, the motel had no duty to protect its guests against them and therefore could not be held negligent for failing to do so. The trial court agreed and entered summary judgment in favor of the motel. 

Mrs. Lang appealed, arguing that because the excessive stair height and lack of a handrail were violations of the state building code, the trial court erred in granting summary judgment in favor of the motel because the open and obvious doctrine is inapplicable and summary judgment is improper when the condition at issue is in violation of the building code. The 4th District Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Holly Hill based on the open and obvious nature of the hazard that caused injury, but certified that its ruling on that issue was in conflict with decisions in two other appellate districts. The Supreme Court agreed to hear arguments to resolve the conflict.

In today’s decision, Chief Justice Moyer wrote: “To prevail in a negligence action, a plaintiff must demonstrate that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the defendant’s breach proximately caused the plaintiff to be injured. ...  However, this duty does not require landowners to insure the safety of invitees on their property. As we have repeatedly recognized, ‘[t]he open-and-obvious doctrine remains viable in Ohio. Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.’ ... ‘[T]he owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.’ ... Thus, when a plaintiff is injured by an open and obvious danger, summary judgment is generally appropriate because the duty of care necessary to establish negligence does not exist as a matter of law.”

The Chief Justice noted, however, that in a 2006 decision, Robinson v. Bates, the Supreme Court held that “although the open-and-obvious doctrine can excuse a defendant’s breach of a common-law duty of care, it does not override statutory duties. ...  The distinction between the two types of duties lies in the fact that the violation of a statutory duty constitutes negligence per se. ... The concept of negligence per se allows the plaintiff to prove the first two prongs of the negligence test, duty and breach of duty, by merely showing that the defendant committed or omitted a specific act prohibited or required by statute; no other facts are relevant.”  In requesting an exception from the application of the open-and-obvious doctrine for the Building Code violations in this case, he wrote, “Mrs. Lang is essentially asking us to elevate administrative-rule violations to the level of negligence per se that we applied to statutory violations in Robinson.”

Following the rationale of the Supreme Court’s 1998 decision in Chambers v. St. Mary’s School,  Chief Justice Moyer declined to extend the concept of negligence per se to building code violations. 

Regarding the Chambers decision, he wrote: “(W)e distinguished between duties arising from statutes, which reflect public policy, and duties arising from administrative rules, which are created by administrative agency employees who act to implement the General Assembly’s public-policy decisions. ‘If we were to rule that a violation of the [Building Code] (an administrative rule) was negligence per se, we would in effect bestow upon administrative agencies the ability to propose and adopt rules which alter the proof requirements between litigants. Altering proof requirements is a public policy determination more properly determined by the General Assembly ...’ We also noted that there are innumerable administrative rules adopted each year and that it would be virtually impossible to comply with all of them. Applying negligence per se in this context would thus in effect turn those subject to administrative rules into insurers of third-party safety, something that violates the basic principle of the open-and-obvious doctrine. ‘Only those relatively few statutes which this court or the General Assembly has determined, or may determine, should merit application of negligence per se should receive such status.’

While a building code violation may be strong evidence that a condition was dangerous and that the landowner breached its duty of care by failing to repair it, the Chief Justice wrote: “(T)he violation is mere evidence of negligence, and does not raise an irrebuttable presumption of it.  As is the case with all other methods of proving negligence, the defendant may challenge the plaintiff’s case with applicable defenses, such as the open-and-obvious doctrine. The plaintiff can avoid such defenses only with a per se finding of negligence, which we declined to extend to this context in Chambers.”

The Chief Justice concluded by noting that property owners who violate the building code face numerous statutory penalties, including injunctions, fines and criminal sanctions, that act as strong disincentives for ignoring their obligation to maintain their property in a safe condition. He observed that today’s decision does nothing to reduce the additional deterrent of potential civil damages in cases where courts determine that a code violation that caused injury was not open and obvious.

Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton,  Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a separate opinion, joined by Justice Maureen O’Connor, in which she concurred with the majority in judgment only. Justice Lanzinger observed that the open and obvious doctrine is more than a theory of defense, because it functions as a complete bar to recovery by a plaintiff based on a property owner’s negligence. 

She noted that many other jurisdictions across the country have adopted a more flexible standard set forth in Section 343(A)(1) of the Restatement of Torts that allows claims of negligence to be pursued despite the obviousness of a hazard in cases where “the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.”

“I believe that the facts in this case come within the exception to the lack of duty as set forth in Restatement of the Law 2d, Torts (1965), Section 343A(1), that being the concept of anticipated harm from an obvious condition,” wrote Justice Lanzinger. “Nevertheless, because this court has not adopted that exception, and based on this court’s earlier holding in Armstrong (v. Best Buy) that an open and obvious condition bars a negligence action because of lack of duty, I concur in judgment only.”

Justice Paul E. Pfeifer dissented, writing that in his view the majority’s strict application of the open and obvious doctrine is inconsistent with the General Assembly’s abandonment of contributory negligence as an absolute bar to recovery and its adoption of a comparative negligence standard that now allows an Ohio plaintiff to recover some of its damages despite having been partially responsible for them.

“I agree with the Supreme Court of New Mexico that ‘[a] risk is not made reasonable simply because it is made open and obvious to persons exercising ordinary care,’” wrote Justice Pfeifer. “ I also agree with that court’s holding that ‘it is for the jury to decide in virtually every case whether a dangerous condition on the premises involved “an unreasonable risk of danger to a business visitor” and whether the occupier “should reasonably anticipate that the business visitor will not discover or realize the [obvious] danger.”’ In the case before us, the dangers were open because they were not hidden, but they were not obvious. The presence or absence of a handrail is not obvious until one reaches for it and it is either there or not. The proper height of a step, as prescribed by building codes, is not obvious, especially to a nonprofessional, without taking measurements. The building code violations that allegedly caused Mr. Lang’s injuries were open, but they were not obvious. This case presents an example of why the open-and-obvious doctrine should be abrogated: it does not allow the consideration of all the factors that are relevant to determine negligence or fault.”

Emily T. Supinger, 513.721.5525, for Dorothy Lang, Executrix of the Estate of Albert Lang.

Herman A. Carson, 740.594.8388, for the Holly Hill Motel.