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Warning: Fallen Warning Sign
by Ron Davis

Should you always watch the ground where you’re walking while going from store to store in a shopping mall? That was a question the courts of Ohio had to answer recently in a lawsuit resulting from a slip-and-fall accident.

The accident occurred at an Ashtabula shopping center, where the victim tripped over a sign warning of a spilled beverage in the center’s common area. The sign had somehow collapsed during the short time it was in place and was lying flat on the floor. The victim apparently failed to spot the sign because her view of the floor was blocked by packages she was carrying.

She later said she suffers from back problems that require her, when carrying packages, to cradle them close to her upper torso instead the normal position by her side. While cradling her packages on the day of her accident, she added, she could see to avoid other shoppers as she walked, but not where she was stepping.

In response, the shopping center’s owners argued that the collapsed sign that the woman tripped over was “open and obvious.” Under Ohio law, the duty of a property owner to care for invitees ceases to exist where dangers are so obvious that the invitees are expected to discover and protect themselves against those dangers. That “open and obvious” doctrine negates the duty to warn and bars negligence claims against the property owner.

An Ohio court agreed with the shopping center’s owners and ruled in their favor. The injured shopper appealed.

An Ohio appellate court, in a split decision, reversed the lower court ruling, explaining, “We [the majority] believe the trial judge erred in finding the collapsed sign an open and obvious hazard. The circumstances demonstrate that an invitee cradling several packages in a shopping mall while attempting to negotiate a dense crowd of mall shoppers would not necessarily discover a collapsed ‘wet floor’ sign as she exited a store. We therefore hold that the attendant circumstances of this slip and fall create a material issue of fact as to whether the shopping center breached its duty of care to this shopper.” (Hudspath v. The Cafaro Company, 2005 WL 3528896 [Ohio App. 11 Dist.])

Decision: December 2005
Published: January 2006



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