Slip and Fall Liability | Shapiro, Washburn & Sharp

Can a store owner convince a court to throw out a slip and fall injury lawsuit by arguing that the injured plaintiff should have seen an “open and obvious pothole” in the parking lot?

That was the question before the U.S. Court of Appeals for the Fourth Circuit in Cring v. BFS Retail and Commercial Operations LLC (Oct. 28, 2008, No. 3:08cv314.) The answer would affect thousands of cases, as the Fourth Circuit sets legal precedent for Maryland, North Carolina, South Carolina, Virginia and West Virginia. Other courts across the United States also cited federal appeals court ruling when issuing rulings.



Defendants in slip and fall cases—which are more properly deemed premises liability cases—often try to claim that plaintiffs knew or should have known that a risk for injury existed and acted to protect themselves from harm. Such a defense can be particularly strong in North Carolina and Virginia, which are two of just four states where courts impose a strict contributory negligence rule. Plaintiffs in Virginia and North Carolina can lose their right to recover compensation from negligent or reckless parties if evidence show that the plaintiffs were as little as 1 percent to blame for an accident.

According to the summary of facts prepared by the Fourth Circuit, a delivery driver suffered injuries when she stepped off a grassy divider in the defendant’s parking lot and fell into a pothole measuring a little over a foot wide and about four inches deep. The defendant tried to have the personal lawsuit dismissed because it believed that such a hole would have been obvious to anyone who looked down.

The appeals court judge ruled against the defendant and allowed the personal injury lawsuit to proceed for three reasons. First, according to the judge, no court has definitively stated that a person who is walking has a duty to look down. In fact, the state Supreme Court of Virginia has determined 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.

Second, the appeals court judge could not believe the defendant’s assertion that the pothole was open and obvious because no employees had identified the hazard during daily checks of the parking lot. Surely, the judge noted, a record of the pothole would exist prior to the driver’s slip and fall. But no record existed.

Last, the pothole into which the delivery driver fell was hidden from her view by the grassy divider until she could look directly down from the divider itself. Further, the pothole was relatively shallow, shaded by the divider and the same color as the rest of the pavement. Since no warning of the hazard was immediately in the driver’s line of sight, she could not be deemed negligent based on the facts available to the court.

The ruling for the plaintiff was a win for all injured people who find themselves accused of contributory negligence. It is easy for defendants in all types of personal injury cases to accuse victims of causing the harm they suffered. A ruling like this one in Cring affirms the duty of defendants to prove their assertions, which defendants often cannot do.