The Law Office of Kurt H King

August 22, 2013

The Open and Obvious Defense in Slip and Fall Cases in Missouri

Plaintiff Julie Holzhauzen filed a premises liability case against the St. Louis Cardinals  to recover for personal injuries she suffered when she slipped and fell 20-30 feet from an embankment owned by the Cardinals onto the below-grade Metrolink light rail track area operated by Metro (the other defendant).  The trial court granted defense motions for summary judgment on grounds that the dangerous condition was open and obvious.  Plaintiff appealed to the Eastern District of the Missouri Court of Appeals, resulting in its Opinion ED98252, dated August 13, 2013.

Holzhauzen fell when she attended the Cardinals 2006 parade and rally celebrating the team’s 2006 World Series victory.  Short in stature, this lady found her way to the ledge that dropped off to the Metrolink tracks.  Someone bumped her as she started to take a step and she lost her balance and fell to the tracks below.

Of note was her testimony that she was distracted, looking toward the street to see the parade, and failed to see the drop-off although her view of it was unobstructed.  (Page 3)

On appeal seeking to reverse summary judgment in favor of defendants, the injured plaintiff argued: 1) the dangerous drop-off was not “known or obvious”; and, 2) as the possessor of the premises, the Cardinals have anticipated that the dangerous condition will cause physical harm to the invitee plaintiff even though it is known or obvious–i.e., was the invitee distracted so that she will not discover what is obvious, or would forget what she has discovered, or fail to protect herself against it, OR PROCEED TO ENCOUNTER THE KNOWN OR OBVIOUS DANGER BECAUSE TO A REASONABLE PERSON IN HER POSITION THE ADVANTAGES OF DOING SO WOULD OUTWEIGH THE APPARENT RISK.  (The court quoting RESTATEMENT (SECOND) OF TORTS, section 343A(1) (1965)–my emphasis.)  (Page 11 of the opinion)

In deciding the first issue of whether the drop-off was “known or obvious,” the court of appeals bluntly stated–“whether an invitee may or may not have seen an open and obvious dangerous condition is ‘totally irrelevant”–citing the Western District’s 2005 decision in Crow v. Kansas City Power & Light, 174 S.W.3d 523, 537.  (Page 9)  So much for plaintiff’s argument that the drop-off was not “known” to her as Missouri law simply cares not a wit whether she knew of the dangerous condition.  Rather, the issue is whether the invitee plaintiff “should have reasonably seen the condition.”  Thus, the focus is not a subjective one focused on what each particular invitee actually noticed, but rather a objective test of what was open and obvious to a reasonable person.  Since the drop-off here was truly open and obvious, the court of appeals disagreed with Holzhauzen on her first point.  (Page 11)

Next, the appellate court examined whether some exception applied to excuse the plaintiff from proceeding on to encounter the dangerous condition.  Here, plaintiff gave three reasons why the court should not apply the general rule that the possessor of the premises is not liable to invitees injured by open and obvious conditions, those being: 1) Distraction; 2) Advantage Outweighing Risk; 3) Anticipation of Harm.  The court refuted each of these three.

With regard to Distraction, illustrations 2 and 4 to comment f to section 343A of the RESTATEMENT OF TORTS describe situations when this argument is a viable reason why the possessor of the premises is held liable even when the dangerous condition is open and obvious.  Too, Missouri case law so holds.  See Bruner v. City of St. Louis, 857 S.W.2d 329 (Mo. Ct. App.  E.D. 1993) (person on moving walkway did not see its end because of airport distractions along the walkway and the presence of others on the walkway blocking the view).  However, in Holzhausen’s case, the ledge from which she fell was behind pipes that she ducked through to reach a ledge that was not intended for her use.  A possessor of the premises would not have reason to expect that an invitee would clamber through large pipes and be so distracted by events behind them that they would fail to see and avoid the drop-off to the tracks from the back of the ledge.  Contention therefore denied.  (Pages 12-13)

Plaintiff’s second pitch was also called out of the legal strike zone, as the advantage of walking next to a steep embankment to see the parade and rally certainly do not outweigh the risk of falling off that embankment.  (Pages 13-14)

Perhaps plaintiff’s most logical supposition was that the Cardinals should have anticipated due to the crush of many fans in a limited space, that some would (and apparently did) find their way to this ledge at the edge of the viewing area.  Here the court found the “critical question” to be whether the Cardinals could reasonably rely on their invitees such as Holzhausen to protect themselves from the danger presented by the ledge and drop-off.  The invitee must use ordinary “perception, intelligence and judgment,” which in this case the plaintiff simply failed to do.  (Pages 14-15)

What do we take from this case?  Maybe its discussion of the exceptions to the Open and Obvious defense–the distractions such as cars passing over the crack or hole in the road that we don’t see before stepping into it on the way to the front doors of a store.  Or perhaps that the law allows us to navigate an open and obvious condition if there is no other good way to get to where we are going.  Or, there is an emergency or urgent situation where the benefit of taking the dangerous route outweighs the harm.  The Open and Obvious defense has its holes!

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation, General Matters

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