Neveda SC tightens 'open and obvious danger' doctrine

CARSON CITY, Nev. (Legal Newsline) - The Nevada Supreme Court overruled a trial court's grant of summary judgment to Costco in the case of a man who alleged injuries from tripping and falling over a pallet placed in a store aisle.

Chief Justice Michael A. Cherry authored the Dec. 27 opinion. The unanimous three-judge panel also included Justices Kristina Pickering and James W. Hardesty.

Stephen L. Foster visited a Costco store in Henderson, Nevada in October 2005. While shopping, he fell and sustained injuries after his left toe caught the corner of a wooden pallet that was "covered by a slightly turned box."

He sued Costco in district court, alleging that they were negligent in creating a dangerous condition and in failing to warn him of the condition. Foster claimed that Costco "owed him a duty to maintain an establishment free of dangerous conditions, including exposed pallets throughout the aisles."

Costco responded with a motion for summary judgment, arguing that the presence of the pallets was "open and obvious" and it was not liable, as a matter of law, for injuries arising from an open and obvious hazard.

Foster argued that there were "material questions of fact" as to whether the dangerous condition was obvious because he could not see the corner of the pallet due to the way a box was positioned on it.

He also argued that even if the pallet was obvious, there were further material questions of fact as to whether Costco was liable for creating and/or subjecting him to the perilous condition.

The trial court granted Costco's motion for summary judgment, ruling that the peril created by the pallet was open and obvious and the boxes on top of the pallet created notice to Foster of the potential hazard.

The court noted that Foster's testimony demonstrated that he comprehended the dangerous condition when he entered the area.

Foster appealed to the state's highest court.

"We take this opportunity to examine the development of the open and obvious doctrine and hold that landowners are not free from the duty to exercise reasonable care solely because the danger posed was open and obvious.

"In doing so, we adopt the approach taken by section 51 of the Restatement (Third) of Torts: Physical and Emotional Harm: a landowner owes a duty of reasonable care to entrants for risks that exist on the property.

"Thus, the fact that a dangerous condition is open and obvious does not automatically shield a landowner from liability but rather bears on whether the landowner exercised reasonable care with respect to that condition and issues of comparative fault," wrote Chief Justice Cherry.

Cherry went through a history of the development of tort law in Nevada, examining case law as well as the evolution of landowner duty from the Restatement (Second) of Torts to Restatement (Third) of Torts before turning to the particular facts of the case.

"Here, the district court relied on Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962), but subsequent development of the open and obvious doctrine compels reversal of summary judgment.

"Costco is not free from liability under Nevada law solely because the danger of the pallet in its aisle may have been open and obvious to Foster. A jury could reasonably believe that Foster walked down the paper goods aisle without observing the corner of the subject pallet because the corner was obscured by a slightly turned box, which blocked it from his sight.

"Even if a jury finds the risk to be open and obvious, it must also decide whether Costco nevertheless breached its duty of care to Foster by allowing the conditions to exist and by permitting Foster to encounter those existing conditions; if so, the jury must further determine whether Foster was partially at fault under comparative negligence theories.

"Accordingly, viewing the evidence in the light most favorable to Foster, we conclude that genuine issues of material fact precluded summary judgment, as material facts remain as to whether Costco exercised reasonable care."

The judgment of the district court was reversed and the case was remanded for further proceedings consistent with the opinion with the instruction that "Costco's alleged negligence should be determined pursuant to the Third Restatement."