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The Open and Obvious Rule
by Ron Davis

A customer of a Stein Mart store located in a Nashville, TN, shopping area has failed in her attempt to blame Stein Mart for an injury she suffered there.

The Stein Mart store is part of a shopping area in downtown Nashville, and the injury to the customer occurred just after she had been using the store’s dressing room to try on various garments.

As she left the dressing room, however, she encountered a shopping cart blocking her exit. Apparently, another shopper had carelessly left the cart there. Then as she attempted to squeeze past the cart, she stumbled and fell, suffering various injuries.

She sued Stein Mart, arguing that her injuries were “proximately caused by the careless and negligent conduct of Stein Mart personnel.” In response to that accusation, Stein Mart, in denying such a claim, argued “the defense of comparative negligence,” claiming that the injured woman’s failure to maintain a lookout and/or use ordinary and reasonable care caused or otherwise contributed to her accident.”

Stein Mart added that it “did not owe the injured woman a duty because the shopping cart is not a dangerous condition.” And even assuming that it was dangerous, “Stein Mart still did not owe the plaintiff a duty because the cart was an open and obvious object.”

That left it to the the court to determine whether the injury was actually caused by Stein Mart personnel or whether Stein Mart personnel simply had actual notice of the dangerous condition before the accident occurred, but did nothing. The shopper claimed that she had no notice before her injury of potential harm that she might suffer.

The state of Tennessee has recently modified what is known as “the open and obvious rule.” Owners of land are now no longer liable to invitees for physical harm they caused, “either by them or by any activity or condition on the land whose danger is known or obvious to them.” The exception occurs when a land owner “should anticipate the harm, and such knowledge is obvious.” Stein Mart claimed that in noticing the shopping cart and the tight space for exiting the fitting room, the injured shopper “fully perceived the allegedly dangerous condition.”

In finding Stein Mart blameless for the injury to the Stein Mart customer, the court explained, “Since the foreseeability and gravity of harm do not outweigh the burden to engage in alternative conduct, Stein Mart does not owe a duty of care for this open and obvious condition.

(Lynn Carter Wilson v. Stein Mart, Inc., No.3:15 Filed 09/07/2016)

Decision: October 2016
Published: November 2016



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