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Falls Open and Obvious Condition: Cases Summarized

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Falls Open and Obvious Condition and the related topic of premises liability.  For more information on premises liability see the pages on Wikipedia.

Falls Open and Obvious Condition-Cases

2011 Volpe v. City of Lexington, 281 Va. 630, 708 S.E.2d 824.

Child drowned in river that was designated as a city park designed for swimming. Trial Court incorrectly held that dangerous current was open and obvious condition. Although the potential dangerousness of the water itself may have been open and obvious, what was not open and obvious was the dangerous current which created a hydraulic beneath the water surface. Jury issue likewise created as to whether or not this condition constituted a form of recklessness or total disregard of precautions amounting to gross negligence on the part of the City. As a matter of law, however, this conduct on the part of the City did not rise to the level of willful and wanton negligence.

2009 Fultz v. Delhaize Am., Inc., 278 Va. 84, 677 S.E.2d 272.

Trial court improperly granted summary judgment based upon contributory negligence of plaintiff where issue presented was whether or not metal bar attached to the floor in this grocery store was open and obvious and, if so, was it reasonable on the part of the plaintiff to not see it. Even assuming that the condition was open and obvious, the second issue was one for the jury.

1997 O’Brien v. Everfast, Inc., 254 Va. 326.

Plaintiff injured when bolt of fabric fell on her. The bolts of fabric were leaning against a cutting table and had been placed there by employee of defendant. This was in violation of defendant’s policy. One of these bolts of fabric fell on plaintiff resulting in injury. Jury issue created. Absence of evidence as to what caused bolt of fabric to fall does not preclude jury from finding that injury resulted from defendant’s negligence. In this case, bolts of fabric are not so remarkable a danger that invitee unfamiliar with nature of danger posed would naturally seek to avoid it. Issue of contributory negligence was properly submitted to jury and jury found in favor of plaintiff.

1995 Little Creek Inv. Corp. v. Hubbard, 249 Va. 258, 455 S.E.2d 244.

Plaintiff was exiting place of employment in shopping center when she tripped over muffler on sidewalk. Employee of defendant had seen muffler before accident but decided not to remove it. Plaintiff testified that she was looking straight ahead, not looking down, in order to explain why she did not see muffler. Given lighting conditions and circumstances of plaintiff exiting store, this was not contributory negligence as a matter of law.

1992 Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 419 S.E.2d 627.

Elderly plaintiff fell when she entered elevator when elevator floor depressed below hallway. Defendant claimed condition was open and obvious, but color of carpeting, lighting, and fact that plaintiff in hurry to push “open” button inside elevator are all facts that make issue of contributory negligence for jury, even though plaintiff testified that if looking down she could have seen depression.

1990 Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 397 S.E.2d 821.

Snowbank that plaintiff stepped over clearly was open and obvious. Plaintiff, however, approached snowbank at low point, was wearing snow boots with good tread, carefully placed her foot on snowbank, and at time of accident was attempting to enter her place of employment through entrance that had been essentially surrounded by snowbank. Jury question presented as to plaintiff’s negligence.

1988 Rocky Mt. Shopping Center Assocs. v. Steagall, 235 Va. 636, 369 S.E.2d 193.

Plaintiff fell when she stepped off sidewalk into depression formed by recessed water meter cover on owner’s parking lot. Depression eight to twelve inches across and two to three inches deep. Plaintiff could have seen it if she had been looking for it. Plaintiff guilty of contributory negligence as matter of law for failing to see obvious condition.

1984 Tate v. Rice, 227 Va. 341, 315 S.E.2d 385.

Plaintiff was delivery man who made deliveries to defendant’s private residence. He fell on ice and snow on defendant’s driveway. In regards to private homeowner, obviousness of danger serves to eliminate any duty on landowner’s part to warn or to remove danger. Court held that duty of owner or occupier of private residence to maintain his premises in condition which is reasonably safe for invitee does not extend to warning of or removing danger that is open and obvious.

1984 Brill v. Safeway Stores, 227 Va. 246, 315 S.E.2d 214.

Two of defendant’s employees were walking abreast down five-foot-wide aisle when one of employees accidentally struck plaintiff, causing her to fall. Plaintiff’s evidence was sufficient to show how and why accident occurred, i.e., that employee failed to maintain reasonable lookout. Trial court erred in granting defendant’s motion to strike.

1977 West v. City of Portsmouth, 217 Va. 734, 232 S.E.2d 763.

Falls open and obvious condition.Pedestrian injured on account of sidewalk defect is guilty of contributory negligence as matter of law, when he had actual knowledge of defect, and no reasonable excuse for inattention. Same is true when, although pedestrian had no actual knowledge, defect was open and obvious and, by exercise of ordinary care, could have and should have been seen.

1976 Bassett Furn. v. McReynolds, 216 Va. 897, 224 S.E.2d 323.

Plaintiff allowed to present testimony of person who did not see hole to show that it was not open and obvious.

1975 Indian Acres of Thornburg, Inc. v. Denion, 215 Va. 847, 213 S.E.2d 797.

Falls open and obvious condition.Notice or warning by landowner is required of unsafe condition known to him and unknown to invitee, unless condition is open and obvious and is patent to reasonable person exercising ordinary care for his own safety, in which case notice is not required.

1974 Wynne v. Spainhour, 215 Va. 16, 205 S.E.2d 634.

Falls open and obvious condition.Plaintiff fell on service station pavement on “dark moisture spot” that turned out to be ice. Defendant did all that exercise of reasonable care required to remove snow and ice. Although there is duty to warn of hidden dangers, no duty where, as here, danger of remaining ice spots was open and obvious. Negligence not proven.

1974 Town of Hillsville v. Nester, 215 Va. 4, 205 S.E.2d 398.

Falls open and obvious condition.Plaintiff fell on crack in sidewalk that was open and obvious. Plaintiff guilty of contributory negligence as matter of law.

1972 Aragona Enters. v. Miller, 213 Va. 298, 191 S.E.2d 804.

Falls open and obvious condition.Infant fell into drainage ditch near apartment building and received injuries that proved fatal. Landlord not liable to tenant or members of tenant’s family, whether adult or infant, for injury resulting from open and obvious condition existing at inception of tenancy and which tenant knew or had means of knowing equal to landlord.

1972 Tazewell Supply Co. v. Turner, 213 Va. 93, 189 S.E.2d 347.

Falls open and obvious condition.Plaintiff tripped and fell over box left in store aisle. While customer is not required to be on lookout for dangers not open and obvious, here, box on floor in aisle was open and obvious danger. Plaintiff did not look; sister saw box and easily avoided it. Plaintiff guilty of contributory negligence as matter of law.

1964 Presbyterian Sch. v. Clark, 205 Va. 153, 135 S.E.2d 832.

Plaintiff injured when she mistook glass panel for open door. Contributory negligence as matter of law.

1962 Great All. & Pac. Tea Co. v. Rosenberger, 203 Va. 378, 124 S.E.2d 26.
Pool of starch on supermarket floor. Falls open and obvious condition to plaintiff. Verdict for defendant.

1958 Cook v. Shoulder, 200 Va. 281, 105 S.E.2d 860.

Falls open and obvious condition.Person is presumed to have seen that which he should have seen, had his observations been careful and attentive.

1958 Gottlieb v. Andrus, 200 Va. 114, 104 S.E.2d 743.Falls open and obvious condition.Court held as matter of law that plaintiff was contributorily negligent for failing to see boxes in aisle of supermarket that were in plain view.

1958 Reese v. Holloman, 199 Va. 939, 103 S.E.2d 5.

Defendant’s workers was installing furnace in plaintiff’s home. In so doing, they removed grate in floor and replaced it temporarily with cardboard. Plaintiff stepped into hole. Jury question presented as to contributory negligence.

1953 Nolan v. City of Richmond, 194 Va. 943, 76 S.E.2d 126.

Defect in sidewalk not open and obvious. Plaintiff avoided obvious defect yet still was injured.

1952 Virginia Beach v. Starr, 194 Va. 34, 72 S.E.2d 239.

Defective sidewalk. Falls open and obvious condition to plaintiff. Duty of plaintiff to see it.

1948 Virginia Stage Lines v. Newcomb, 187 Va. 677, 47 S.E.2d 446.

Plaintiff fell off platform in bus station. Plaintiff made no effort to look down at platform. Had she done so, she obviously would not have fallen.

1948 City of South Norfolk v. Dail, 187 Va. 495, 47 S.E.2d 405.

Falls open and obvious condition.Stepping into hole in sidewalk two feet in diameter and 2½ inches deep with no obstruction to her vision is contributory negligence as matter of law. Plaintiff gave no excuse for not seeing hole.

1948 Walker v. Memorial Hosp., 187 Va. 5, 45 S.E.2d 898.

Falls open and obvious condition.Every pedestrian who ventures out in inclement weather with precipitation on ground knows he is risking chance of fall.

1944 Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548.Plaintiff guest in boarding house, sat on rocking chair which was missing rocker and fell over. Condition was not open and obvious.

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