Sometimes appellate decisions are more about what wasn't said. Last week, in Stiles v. Marc Glassman, Inc., 2015-Ohio-1438, the Ninth District affirmed a trial court's decision granting summary judgment in favor of Marc's. The trial court roughly held that the open and obvious doctrine obviated any duty to warn the plaintiff about a puddle of water on the ground that may have caused her fall. The trial court actually held that "the liquid was not such an unreasonably hazardous condition that it would impose a duty of care upon" the premises owner. Interestingly, the Ninth District's reliance on that language derives from an old Ohio Supreme Court decision, Parras v. Standard Oil. Co., in which the court noted that wet floors caused by "hallways between the outside doors of such buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming." The Ohio Supreme Court's rationale was that no duty was owed because the general public shoud have expected the hazardous condition to be present and the owner had no duty to keep cleaners and moppers on hand to wipe up the hazard as soon as it was created.
In the Ninth District's recent case, the plaintiff was injured inside a grocery store picking up a watermelon. The trial court relied on a line of cases stemming from the Ohio Supreme Court's decision mentioned above. There was no evidence in the Stiles case, however, that the place the plaintiff fell a place prone to having water on the floor caused by anything other than an unreasonably hazardous condition. It is one thing to say that customers should be aware of the fact that the foyer of the store is wet due to water being tracked in during rain storms, it is another to rely on that theory for water being present in the middle of the store. The Summit County trial court appeared to be conflating the Ohio Supreme Court's Parras precedent with the open and obvious doctrine, which nullifies any duty owed by the premises owner in light of the objectively visible nature of the hazardous condition. Essentially, under that theory, there is no duty owed because the hazardous condition was not unreasonably dangerous, but because of the visible nature of the condition, the non-existent duty was nullified by the open and obvious doctrine.
The decision could lead to confusion or an outright expansion of the open and obvious doctrine to conditions that are not objectively visible. From reading the facts, the appellate court probably was correct in determining that the plaintiff failed to demonstrate negligence: it is apparent that there was no constructive notice of the water, which would be required in order to hold Marc's liable under general negligence principles. The plaintiff admitted that she was unaware of how long the water had been present before she encountered it. That lack of evidence was dispositive. Likely the courts in Stiles were hampered by the arguments advanced by the parties, the court noting at one point that the trial court's actual decision was not itself appealed–the plaintiff appealed a proceduraly question regarding the decision. Nonetheless, in the Ninth District parties advancing premises liability actions should be aware of this trend in which the courts are combining a line of cases in which no duty is owed with the open and obvious doctrine which obviates any duty owed by the premises owner.
