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Wednesday, October 17, 2012

Pallet may not be "open and obvious"

By Deborah Elkins Virginia Lawyers Media
Published: October 15, 2012

Tags: Judge Glen E. Conrad, Negligence, U.S. District Court - Western District

A woman who tripped over a pallet that supported a doughnut display can try her negligence claim against defendant store; a Charlottesville U.S. District Court denies the store’s summary judgment motion claiming the hazard was open and obvious.

Each of the cases cited by defendant to support a theory of contributory negligence has significant distinguishing characteristics from the case at hand. In each of two cited cases, the plaintiff clearly would have recognized that the object itself should be avoided. In this plaintiff’s case, however, it is not so certain she would have recognized the danger presented by the pallet even if she had seen it. Based on her prior experience, she had no reason to think it was possible to catch her foot on anything under the cardboard bin.

Nor can it be said, as a matter of law, that the danger of entangling a foot on the underside of a display bin is necessarily open and obvious to a person exercising due care. By the very nature of merchandise displays, customers are encouraged to stand close to the container to allow them to retrieve the goods. Even if a patron was aware that a display bin was supported by a pallet, an ordinary person might not consider it likely she would have her foot caught on the underside of the pallet simply on account of approaching the bin and removing items for sale.

Virginia case law supports such a result. The Supreme Court of Virginia has said it is not enough that an object be plainly visible to constitute an open and obvious hazard, the plaintiff must also have reason to appreciate the nature of the harm posed by the object.

At this point in the proceedings, any doubt about whether a reasonable person would have recognized the nature of the harm must be resolved in plaintiff’s favor. Defendant has failed to overcome the general presumption under Virginia law in favor of having a jury determine whether a hazard is open and obvious.
Summary judgment for store is denied.

Cunningham v. Delhaize America Inc. (Conrad) No. 3:12cv00002, Sept. 27, 2012; USDC at Charlottesville, Va. VLW 012-3-492, 8 pp.

Good information.

Tucker Griffin Barnes
Charlottesville, VA (434-973-7474)

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