In a recent federal court decision out of Richmond, Virginia (within the Federal court circuit over West Virginia (WV), Virginia (VA), North Carolina (NC) and South Carolina (SC) the federal judge denied a motion to dismiss a delivery driver's personal injury lawsuit against a Firestone Tire store, though Firestone claimed that the delivery driver should have seen an open and obvious pot hole in the parking lot. The issue of when a condition such as a hole or a pothole constitutes and open and obvious condition is one that often arises in personal injury lawsuits involving slips, trips and falls.
If a condition is “obvious” the establishment tries to get the suit dismissed prior to trial.
In the new decision, in a case called Cring v. BFS Retail and Commercial Operations LLC, the opinion by Judge Payne outlined the fact that under Virginia law courts are permitted to find contributory negligence on behalf of the injured victim when the hazard or condition was open and obvious, and with ordinary care, the condition/hole could have or should have been avoided by the injured person. Also, this particular decision noted that the Supreme Court of Virginia has specifically not decided, as a matter of law, that a pedestrian's failure to look down while stepping forward must always constitute contributory negligence on behalf of the injured person. The Virginia high court stated that a jury must examine the size, location and visibility of defects or conditions to determine whether they are truly open and obvious to a personal injury victim.
In the Cring case the Firestone establishment's pothole in question was allegedly obscured or covered up by the shadows of parked cars on either side of the pothole. The pothole in question was the same color as the blacktop surrounding it. Most important to the court was that the Firestone employees that work at the store failed to notice the open and obvious pothole during routine inspections that Firestone claimed occurred at least every morning at its store. The Firestone employees did not have any knowledge of the pothole that caused the delivery driver's personal injury and the court pointed out that it was ironic that Firestone, as the defendant in the suit, would claim that the pothole is open and obvious as a matter of law, when Firestone's employees, who actively inspected the area for hazards, did not discover the pothole at any time prior to the delivery driver's personal injury.
Accordingly, the federal court denied summary judgment or dismissal of the action based on the claim that the condition was open and obvious to the injured delivery driver. In any personal injury slip, trip or fall action our law firm has handled, the issue of whether the condition is open and or obvious is important, and whether the personal injury client may have contributed to the accident by not being vigilant, it is always something to examine.
Many conditions can be hidden or obscured to a person because of the overall color of the area, because of lighting, because of distractions such as signs or nearby activities, and these are always investigated issues. Also, in slip, trip or fall cases, a personal injury attorney must examine whether the condition was one created by the store or business establishment or its employees, or was the subject condition created by some other customer or other cause.