Boxes in Aisle of Store “Open and Obvious”

On June 12, 2009, the Alabama Supreme Court held in favor of a retailer in a trip and fall suit.  In Dolgencorp, Inc. v. Taylor, ___ So.2d ___ (Ala. 2009), the Court considered an appeal in which an invitee at a Dollar General store tripped over unopened cases of merchandise in the store’s aisle.  The plaintiff testified at trial that she had not seen the cases, which were stacked approximately “knee or thigh high,”  but had noticed other cases of merchandise in the store on that occasion, and had maneuvered around them.  The plaintiff also presented testimony at trial from former employees of the store, suggesting that the store was “a wreck,” “a mess,” and “an accident waiting to happen.”  A jury found for the plaintiff, and awarded $260,000, including $175,000 in punitive damages.

In reversing the jury’s verdict, the Court held:

The owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care.  Ex parte Mountain Top Indoor Flea Market, 669 So.2d 158, 161 (Ala. 1997).

In a standard premises-liability setting, we use an objective standard to assess whether a hazard is open and obvious.  The question is whether the danger should have been observed, not whether it was consciously appreciated.  In order for a defendant-invitor in a premises-liability case to win a summary judgment or judgment as a matter of law grounded on the absence of a duty on the invitor to eliminate open and obvious hazards or to warn the invitee of them, the record need not contain undisputed evidence that the plaintiff-invitee consciously appreciated the danger at the moment of the mishap.  While all ordinary risks present are asumed by the invitee, this recitation cannot mean that the invitor’s duty before a mishap is determined by the invitee’s subjective state of mind at the moment of the mishap.  Jones Food Co. v. Shipman, 981 So.2d 355, 362-63 (Ala. 2006).

The Court found that no evidence was presented that the cases were hidden, and held that the trial court should have granted the store’s motion for judgment as a matter of law.


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