Discussion of "Open & Obvious."
In Virginia slip and fall cases, a primary argument defendants use is they aren’t at fault because the dangerous condition was “open and obvious.” Take, for example, the hypothetical plaintiff that falls in a large crack in a sidewalk. The owner of the sidewalk will often argue “the plaintiff is at fault, not us. After all, the crack was open and obvious – if the plaintiff was looking where he was going, he’d have seen it.
Recently, in the case of Robinson v. Kroger Co (015-3-492) the Lynchburg US District Court denied Kroger’s open and obvious claim against a the plaintiff who fell on spilled liquid. While the Plaintiff stated “I guess” in response to being asked “if you had been looking at the floor looking for liquid, would you have seen it?”, the liquid “looked like the same color of the floor…”
In refusing to dismiss the claim on summary judgment, the court found that “a jury could reasonably find that, even if the plaintiff had been looking at the floor, she would not have been able to see the liquid because it blended with the floor, obscuring it from view.”
Discussion of timing of the fall.
Additionally, Kroger used another often-used argument against liability – the spill only occurred minutes before the plaintiff’s fall, “so we can’t be liable.” From the evidence, it appears that the liquid was spilled only 2-3 minutes prior to the plaintiff’s injury. In response to this argument, the court stated, “…it is clear that in Virginia, a negligence-breach analysis does not incorporate mechanical, inflexible rules of the sort defendants suggest. Rather, the inquiry is whether, under all of the circumstances, the defendant acted reasonably. While the amount of time it took a defendant to respond is relevant, it is but one factor. That plaintiff slipped approximately one minute after the spill occurred is not dispositive.”
While the court denied Kroger's motion for summary judgement based on these arguements, keep in mind that a jury could still determine that the liquid was open and obvious or that Kroger took appropriate steps to clearn the spill. But this case is important because slip and fall cases are regurlarly kicked out of court on summary judgement. For a court to find there is a genuine issue in this case gives the Plaintiff a fighting chance.
For more information about the case, click here. Of course. give us a call if you have any other questions about Virginia personal injury law.