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Hersh v. E-T Enterprises Ltd. 
The Elimination of the Open and Obvious Doctrine

On November 12, 2013, the West Virginia Supreme Court of Appeals released its decision in Hersh v. E-T Enterprises, Ltd., et al., No. 12-0106. This landmark decision overturns more than 100 years of West Virginia precedent by holding that the "open and obvious doctrine in premises liability negligence actions is abolished." The Court replaced the doctrine by stating that "if it is foreseeable that an open and obvious hazard may cause harm to others despite the fact it is open and obvious, then there is a duty of care upon the owner or possessor to remedy the risk posed by the hazard." Indeed, instead of precluding liability, the Court held that the "the finder of fact may consider whether a plaintiff failed to exercise reasonable self-protective care," but the "plaintiff's confrontation of an open and obvious hazard is merely an element to be considered by the jury in apportioning the relative fault of the parties."

A. The Facts

Hersh arose out of a personal injury suffered by plaintiff Walter E. Hersh while shopping at a Martinsburg, West Virginia shopping plaza. While in the shopping plaza parking lot, Mr. Hersh traversed a set of stairs that did not have a handrail, in violation of Martinsburg city ordinance. The handrail was reportedly removed by the property owner, Mr. Ralph Eckenrode, to prevent skateboarders from using it to perform stunts, which could result in serious injury. Subsequently, Mr. Hersh fell down the stairs and suffered a severe head injury. There was no dispute between the parties as to whether (1) the missing handrail constituted a violation of Martinsburg city ordinance, or (2) that Mr. Hersh was aware of the missing handrail before he attempted to traverse the stairs.

In two orders dated December 15, 2011, the Berkeley County Circuit Court granted summary judgment to all defendants in the action on the grounds that a "property owner is not liable for injuries sustained as a result of dangers that are 'obvious, reasonably apparent, or as well known to the person injured as they are to the owner.'" While the circuit court recognized the long-standing principle that violation of a safety ordinance is prima facie negligence under West Virginia law, it determined that "open, obvious, and known conditions cannot create actionable negligence in West Virginia premises liability cases." Mr. Hersh appealed the decision to the West Virginia Supreme Court of Appeals, seeking, in part, abolishment of the open and obvious doctrine.

B. The Opinion

In reversing the circuit court, the West Virginia Supreme Court of Appeals relied on multiple arguments. First, the Court noted that the "circuit court erred in finding that the defendants owed no duty of care to the plaintiff" based on the Martinsburg ordinance imposing such a duty of care. Relying on the well-settled rule that "a defendant's disregard of a statute is prima facie negligence," the Court easily found that the defendants' failure to keep a handrail on the staircase was prima facie negligence. Disposing of this tangential issue, the Court then turned to the issue of "actionable negligence."

The Court began by stating that the

obviousness of a danger does not relieve an owner or possessor's duty of care towards others . . . [w]hether a plaintiff's conduct under the circumstances was reasonable will be determined under the principles of comparative negligence. A plaintiff's knowledge of a hazard bears upon the plaintiff's negligence; it does not affect the defendant's duty.

In other words, the Court found that the issue of a plaintiff's ignorance does not go to the question of "duty," but rather the question of "causation" under negligence law.

To support this finding, the Court looked to the Restatement (Second) of Torts, which provides that the "fact that a danger is open, known, or obvious to others does not eliminate 'liability' as a matter of law." Noting that numerous states have adopted the Restatement's reasoning, the Court reasoned that "the open and obvious doctrine is akin to contributory negligence" which the Court "abolished . . . and adopted the doctrine of comparative fault" because "contributory negligence was harsh, strict, and violated 'concepts of justice and fair play.'" Therefore, the Court found that in "light of our comparative negligence doctrine, we believe that the fact that a hazard was open and obvious should not relieve the possessor of the premises of all possible duty with respect to the hazard."

Despite looking to the decisions of other states and the Restatement for guidance, the Court rejected the Restatement as written, reasoning that "it is unwieldy and does not clearly state when a premises owner or possessor may be held liable." Instead, the Court elected to develop its own test:

in determining whether or not an owner or possessor of land has a duty of care to alter their [sic] conduct when faced with a hazard on the land, the focus is on foreseeability. The risk of harm to others from an open and obvious danger can sometimes be foreseeable to an owner or possessor, thereby creating a duty to exercise care to alleviate the danger . . . [t]he ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?

To aid in applying its new test, the Court adopted five guidelines for assessing "whether an owner or possessor of land has exercised reasonable care:"

(1) the foreseeability that an injury might occur; (2) the severity of the injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury.

In an effort to preserve the logic behind the open and obvious doctrine, the Court also stated that the
finder of fact must assess whether a non-trespassing entrant failed to exercise reasonable self-protection in encountering a hazard . . . [b]ut an entrant's decision to encounter an open and obvious danger does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place.

The Court also emphasized that it continues "to hold that possessors of property - particularly private homeowners - are not insurers of safety . . . they only have a duty to take reasonable steps to ameliorate the risk." The Court then proceeded to apply its new test to the facts of this case, finding that the circuit court "should have found that the defendants had a duty of care to install handrails on the staircase."

C. The Dissent

Justice Loughry challenged the Court's decision in a dissenting opinion, stating that "ordinary homeowners will pay the highest price for the majority's pandering to persons who ignore risk associated with open and obvious hazards." Noting that the "majority has saddled property owners with the impossible burden of making their premises 'injury proof' for persons who either refuse or are inexplicably incapable of taking personal responsibility for their own safety," Justice Loughry emphasized that "owners [now] have a duty to anticipate that persons who come onto their property will fail to pay attention to even the most obvious of risks."

Justice Loughry took issue with the Court's reasoning as well as the impact of its decision. He challenged the Court's focus, noting that "the majority purports to frame its analysis in terms of the duty of a landowner . . . then completely abandons the concept and focuses on the element of causation." As a result, Justice Loughry observed that the Court "overlooks the simple truism that where there is no duty there is no liability, and therefore no fault to be compared."

Justice Loughry also attacked the Court's departure from the principle of stare decisis, stating that he is "deeply disappointed by the majority's decision . . . not to adhere to this Court's prior decisions that have clearly articulated the duty of property owners" for more than 100 years.

Justice Loughry then reiterated his opinion that "the majority has created a subjective legal duty which is contingent, uncertain, and impractical for West Virginia property owners." He noted that "every natural hazard now represents another source of potential liability for the property owner" and observed that, for example, "farmers who enclose their property with barbed wire fence face liability whenever someone simply walks into the fence and suffers an injury." Justice Loughry also pointed out that "the majority's decision eliminates the ability of circuit courts to dispose of meritless litigation . . . as every slip and fall case will now be presented to a jury to apportion fault." He also warned that "the underdeveloped and impracticable rule of law the majority has now set forth . . . could ostensibly be construed as creating strict premises liability" because the "majority holds that a premises owner has a duty to 'remedy the risk posed by the hazard.'" As such, "[w]hether intended or not, this wording suggests that hazards must be wholly eradicated."

Justice Loughry concluded his dissent with the prediction that "the majority has made owning property in West Virginia more costly," and stated that he disagreed "with this unwise and unnecessary change in our premises liability law."




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