A slip-and-fall lawsuit plaintiff recently was handed a victory by the Alabama Supreme Court, which ruled the case should be remanded for trial because the defendant, in this case a restaurant, failed to prove the hazard in question was open and obvious.
Even though this is an out-of-state case, the open and obvious doctrine is a pretty universal one in most states when it comes to premises liability law and slip-and-fall cases in particular. The open and obvious defense is an exception to the duty of care owed by property owners which requires that they use reasonable care to shield or warn lawful visitors from dangerous conditions. If the danger is open and obvious, it is presumed the visitor will take reasonable care to avoid it and protect themselves. There is no duty to warn of a condition that is obvious.
In the recent slip-and-fall case out of Alabama, the court examined the details of an injury suffered by the patron of a fast-food restaurant, cast in the light most favorable to plaintiff, who was appealing an earlier summary judgment in favor of defendant.
Plaintiff visited the restaurant one day in April 2013. Upon entering, he went straight to the restroom, where he washed his hands. He began walking back and planned to approach the counter. As he planted his left foot, it slipped out from underneath him and turned sideways. He fell backward, injuring his left hip, his back and his left hand. He then said he was disoriented and approached the counter, planning to make an order. The cashier asked him if he was Ok, and he nodded but then left the restaurant without ordering.
Surveillance footage showed an employee mopping the floor shortly before the incident. It also reportedly shows plaintiff slipping, though it does not show the entire area in front of the restroom door where plaintiff fell. Plaintiff would later assert the clip did not show his actual slip-and-fall, which did not occur in an area covered by surveillance cameras, but does show him slipping as he approached the counter to get in line.
Plaintiff later returned to the restaurant, at the insistence of his girlfriend, to report the slip-and-fall to the manager. He filled out a written report and then went to the emergency room for medical treatment.
He later filed a personal injury lawsuit seeking damages for his slip-and-fall injuries and related costs.
Defendant argued first that plaintiff did not slip-and-fall in the restaurant, as it was not captured by surveillance footage, and that plaintiff had failed to present any substantial evidence that he had. Defendant argued alternatively that even if plaintiff had slipped and fallen, the danger of the wet floor in front of the counter was open and obvious.
Circuit court granted summary judgment to defendant.
The Alabama Supreme Court, however, reversed and remanded.
Defendant had argued plaintiff’s deposition should be disregarded for conflicting statements. Circuit court had disagreed with this, and did not grant summary judgment on these grounds and the state high court agreed with this. However, on the issue of the wet floor being open and obvious, the court reached a different conclusion than the circuit court. Plaintiff alleged he slipped and fell in a slick spot outside the restroom. Defendant argued the wet floor in front of the counter was open and obvious. Defendant failed to adequately dispute the open and obvious nature of the wet floor in front of the restroom, where the fall was alleged to have occurred.
The case was remanded for trial.
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Barnwell v. CLP Corporation, April 21, 2017, Alabama Supreme Court
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Grocery Store Slip-and-Fall Verdict to Stand, March 21, 2017, Orlando Slip-and-Fall Accident Attorney Blog