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Bad Trip Faller’s Fault
by Ron Davis

Blame for a shopping center customer’s injury caused by an “open and obvious danger” usually has a predictable outcome. But as a recent Ohio lawsuit proves, the path to the predictable can have some hairy turns.

In that lawsuit, a customer of the shopping center, located in the Cleveland area, told of going there late one morning to make a purchase at one of the tenant stores. He said after he parked his car in the center’s parking lot, he began walking toward the store. Before getting there, however, he passed between two parking spaces reserved for handicapped patrons.

He said at the end of that passageway was a concrete parking bumper. That bumper is black, but has three wide yellow stripes painted diagonally along the side.

He explained that he walked up the passageway, but just as he was “getting ready to open [the tenant’s] door,” he fell forward, apparently having tripped over the parking bumper. He said he then got to his feet, made his purchase at the store, but afterward went to a local hospital for treatment of the injuries he said he incurred in the mishap. The injuries treated at the hospital included fractures to both arms and a detached retina.

The lawsuit against the shopping center’s owner and the tenant claimed that they negligently permitted a dangerous condition to exist. Specifically, he argued that he could not observe the parking bumper because it was similar in color to the asphalt and paint stripes used in the parking lot. He also noted that alignment of the handicap aisle was different than the other parking-lot spaces, plus other distractions impaired his vision.

Finally, the injured shopper argued that the bumper’s placement violated regulations of the Americans with Disabilities Act.

In response, the center’s owners pointed to these previous court rulings: “If a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.” And, “The open-and-obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims.” And, “The rationale behind the doctrine is that the open-and-obvious nature of the hazard itself serves as a warning.”

An Ohio court concluded that the parking bumper was an open-and-obvious danger and that the injured shopper had no legal recourse. The shopper appealed that ruling.

An Ohio appellate court agreed with the lower court, explaining, “The question is whether a reasonable person would have discovered [the parking bumper] under the circumstances. Having considered the characteristics of the parking bumper and the attendant circumstances at the time this shopper was walking to the store entrance, this court concludes that he would.” (Zambo v. Tom-Car Foods, 2010 WL 520804 [Ohio App. 9 Dist.])

Decision: February 2010
Published: February 2010



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