Here is a post I had in draft back on Aug. 18, 2010 with a philosophical critique of the "open and obvious" defense to slip and fall cases (a/k/a premises liability). To put it succinctly, I never knew why judges were able to deprive a litigant of their right to a jury trial by their own individual perception of what was open and obvious. Well, in light of a recent decision by the SCOKY, I decided to post this review for the benefit of the readers as an aside that the law's intricacies and balances should give way to some good old common sense.
A recent decision by the Court of Appeals seems to lose sight (play on words intended) of what really is an "open and obvious" danger in the law of premises liability and how the real world operates. I suggest a little trip down philosophy lane looking at "Sorites Paradox", with a short side trip into the science of mathematics and leverage, ending up with a read of Malcom Gladwell's "Tipping Point" might be in order.
In the decision of Lewis v. Faulkner Real Estate, Aug. 13, 2010, Judge Denise Clayton rendered a decision that left me rubbing my eyes when the three-member panel unanimously affirmed a summary judgment dismissal of a "slip and fall" case by an invitee on the grounds that the lap-top size hole just off the sidewalk was "open and obvious". I have seen the pictures, and it was not open and obvious when the claimant was walking and stepped off the side walk.
Briefly, here is the decision with its opening paragraph:
LEWIS (PHILLIP) VS.FAULKNER REAL ESTATE CORPORATION , ET AL.
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
NOT TO BE PUBLISHED
CLAYTON, JUDGE: While walking his dog, Phillip Lewis was injured when he stepped into a hole on the retail property of Faulkner Real Estate Corporation, Central Retail, LLC, and Central Retail Outlot, LLC (hereinafter “Faulkner”). Lewis appeals from the grant of Faulkner’s summary judgment motion wherein the trial court determined, as a matter of law that he would be unable to prove that Faulkner breached a duty of care owed to him. After careful consideration, we affirm the decision of the trial court.
Jefferson Circuit Judge Judith McDonald-Burkman missed the point (but not the hole apparently), as well as former Jefferson Circuit Court Judge and now Judge of the Court of Appeals Denise Clayton.
The issue as presented was "On appeal, Lewis argues that the condition of the hole, from his perspective, was not open and obvious, and therefore, Faulkner owed him a duty. Faulkner counters that the condition of the hole was noticeable, and thus, under the “open and obvious” doctrine, it did not owe a duty to warn an invitee."
Let's look at this analysis from an open and obvious standpoint.
To counter Faulkner’s argument that the condition of the hole was “open and obvious,” Lewis contends that it is necessary to address the issue of his vantage point as he approached the hole to ascertain whether the hole was “open and obvious”
Basically, the claimant is saying one looks at the danger's openess and obviousness from his vantage point, eg., from the height of his eyes and the angle to the hole as opposed to poised directly overhead and looking down into it.
Lewis proffered photographs that he says show that, given his vantage point, he could not have seen the hole. But Faulkner also provided a photograph, which it maintains shows that, if Lewis had been looking, the condition of the hole would have been within his sight, and also, “open and obvious.” We, however, we do not read Layman as rendering the “open and obvious” condition” of the hole as dependent on Lewis’s vantage point in approaching the hold. Although Layman does say that the vantage point of a party may be a factor to consider, ultimately it reinforces that persons are required to watch where they go.
Then in one of the most bizarre of pieces of retro-analysis, the COA concludes that a well-manicured hole the size of a laptop computer that a person is specifically looking for after falling in it the day before was open and obvious. See, as follows:
During his deposition, Lewis said several times that the hole was large and not obstructed. On page 42 of his deposition the following exchange is found:
Q. How big was the hole? A. A little bigger than a laptop. Q. When you went back to look for it, did you have any
problems finding it? A. No.
Q. Was it a big enough hole that if you’d been looking for it you could have seen it?
A. Oh yeah, if you were looking. Q. Had the grass grown up around it in a way that – A. It was well-manicured.
So that, Lewis admits that, if he had been watching where he was going, he would have seen the hole. Furthermore, he noted that the area was well manicured and the hole was larger than the size of the laptop. Bolstering these statements is Lewis’s statement that no reason (another person or obstruction) existed for him to veer off the sidewalk.
Now, class let's get back to basics.
First, what is open and what is obvious? Open is defined in the Merriam Webster on-line dictionary as "completely free from concealment" and obvious is " easily discovered, seen, or understood". Thus, the vantage point or the angle of the view is critical to how completely free a hole is from concealment and how easily it is discovered. Thus, the height of the person, the angle of the view, the nearness to the sidewalk, the depth of the hole and the height of the grass relative to the size and depth of the hole are all factors, and relying on a picture looking directly into the putative abyss is misleading, inaccurate, and tells the wrong story.
Second, what about Archimedes and his statement on leverage (or in this case vantage point)? This Greek philosopher said once "Give me the place to stand, and I shall move the earth." Or another way, stick it in front of my face and I will see it when I open my eyes. But if the place it too far away or on the floor, then I might easily miss that which you might think is in plain sight!
Third, what about "Sorites paradox" a/k/a the paradox of the heap? If you have a heap of sand and remove a single grain, is it still a heap? If you remove another, then so on and so on, when does it no longer constitute a heap? Or the way I like it said once, is if pull a single hair from your head and continue to do so, at what point are you considered bald? So, goes the hole in the ground. A hole the size of a quarry in the middle of your path is probably open and obvious, but if you fill it up there comes a point when it is not. Which leads us to the next question.
Fourth, what is a tipping point? Gladwell in his book posits "that tipping points are "the levels at which the momentum for change becomes unstoppable." Gladwell defines a tipping point as a sociological term: "the moment of critical mass, the threshold, the boiling point."" S ee, Wikipedia. I submit that within the context of Sorites paradox there is a point in which the heap is no longer a heap and a head full of hair becomes bald. But, is that point a decision for the judge or a jury to make. Is one person's concept of the law of the few enough to deprive a one of their constitutional right to a jury trial and a decision by their peers? I submit no way, especially when by the very essence of the paradox there is no genuine issue of material fact at points on both sides of that tipping point from a hidden hole to one that is open and obvious.
Now, I hope you enjoyed this little trip down the road of philosophy, science, and contemporary literature which supports my view that a hole is open and obvious only in the eyes of the beholder (or should I say "behole"der?).
Hopefully, this case will go up on discretionary review and our Supreme Court will attempt to fill this hole in the law once and for all as it relates to summary judgment, comparative negligence, material issues of genuine fact, and the right to a jury trial.
Have a great day.