Property Owner Escapes Liability From Building Code Violations When Condition Is Open And Obvious
Posted on Jul 30, 2009
In another disturbing application of the "open and obvious" doctrine, the Ohio Supreme Court ruled recently that a business owner who did not comply with several provisions of the Ohio Basic Building Code can escape liability for injuries on its premises if the condition is "open and obvious". In Lang v. Holly Hill Motel, Mr. and Mrs. Lang checked into the Holly Hill Motel for the night. They requested a handicapped room because Mr. Lang (age 78) was dependent upon oxygen and carried a portable oxygen tank. The motel did not have one, but assigned him to one that it claimed would only require him to climb one step. When the Langs got to the room, it actually had two steps. With Mrs. Lang’s help, Mr. Lang climbed the first step, but when they attempted to negotiate the second step, he lost his balance, fell, and fractured his hip. Mr. Lang died about three months after the fall.
Mrs. Lang sued the motel for negligence, claiming that the steps were in violation of several provisions of the Ohio Basic Building Code. The second step exceeded the height limitations in the code and the lack of a handrail was also a violation. The motel claimed that the condition was "open and obvious" and that it owed no duty to Mr. and Mrs. Lang. The motel argued that if the condition is "open and obvious", patrons such as the Langs are obligated by law to protect themselves. Mrs. Lang argued that a building code violation should be an exception to the "open and obvious" doctrine. If the motel was not negligent in this situation, Mrs. Lang argued that the motel would not be held accountable for building code violations.
Four members of the Ohio Supreme Court agreed with the motel and found that because the condition was "open and obvious", the motel was not negligent and the Langs were required to look out for themselves in this situation. As a result the Ohio Supreme Court affirmed the trial court's judgment that the case should be dismissed. Two other justices concurred in the judgment, but only because Ohio recently re-affirmed the "open and obvious" doctrine and they felt bound to follow the prior case holding. These two justices did so reluctantly and believed that the better rule would be to allow a recovery despite an "open and obvious" condition if the landowner should anticipate that patrons would be harmed despite the obviousness of the condition. These two justices also hinted that Mrs. Lang should have disputed that the condition was "open and obvious" when the incident occurred at night and the steps were uniform in color.
One justice dissented from the decision. He believed that if the building owner violated building code provisions, these violations would be sufficient to allow the injured person to proceed with the case despite the "open and obvious" defense.
For now, the defense of "open and obvious" continues to be the law and a huge impediment for injured people to hold property owners accountable for injuries caused by defects in their premises.