Q&A with Jason A. McVicker
Controversial slip-and-fall case
raises business owners’ exposure
Q: What kind of liability does a business owner face for slip-and-fall accidents?
A: Traditionally, a business owner had almost no duty to protect trespassers, a higher obligation for people with permission to be present, and the highest obligation to customers and other “invitees.” For customers, a business must keep the premises reasonably safe and warn of any hidden, dangerous conditions.
Q: What if a dangerous condition is open and obvious?
A: Until recently, generally, a business had no duty to protect people from open and obvious dangers. People were expected to notice these dangers and avoid them. For example, in a lawsuit filed in Oklahoma, a man saw a maid mopping in his hotel, walked up to her, and slipped in her mop water. He sued the hotel, but the state Supreme Court found the wet floor was so obvious he should have avoided it; therefore, the hotel couldn’t be liable. This is why you frequently see “wet floor” signs in restaurants and stores — the business is warning you of a hazard and making the danger obvious enough you should avoid it. However, on July 16, the Oklahoma Supreme Court decided that businesses can be liable for open and obvious conditions if the business had some role in creating the condition. In Wood v. Mercedes-Benz of Oklahoma City, a caterer went to a car dealership to set up a special event early one winter morning. The sidewalk was icy, allegedly because the dealership’s automatic sprinkler system sprayed it with water during the night. The caterer recognized the danger but walked on the sidewalk anyway. In fact, she safely crossed the sidewalk repeatedly. Eventually she fell, and later sued the dealership. There was no dispute that the ice was obvious; the caterer admitted it. Nevertheless, the Supreme Court decided that the dealership could be liable. Reversing the trial court’s order granting summary judgment, the Supreme Court reasoned that “under the peculiar facts of this case,” since (1) the dealership knew the caterer would be present, and (2) the dealership allegedly caused the ice with its sprinkler system, a jury should decide whether the dealership should have done more to protect the caterer.
Q: Why was this so controversial?
A: The decision was 5 to 4, and it garnered two detailed dissenting opinions. One noted that Wood upends nearly a century of Supreme Court precedent. The other opinion called Wood a breach of judicial restraint, and warned that the decision could lead to absurd litigation.
Q: What does this case mean for Oklahoma businesses?
A: This decision severely weakens the open and obvious defense, making it more difficult to secure summary judgment or prevail at trial in slip-and-fall cases. Litigation costs and insurance premiums for business owners may rise. It also may encourage plaintiffs to file lawsuits even in weak cases. Oklahoma businesses should reevaluate how they protect their premises, especially under icy conditions. Fortunately, slip and fall plaintiffs do not automatically win under this new decision. Wood can be distinguished on its “peculiar” facts, and plaintiffs still have to sell their stories to a jury. Nevertheless, businesses should be aware of this decision and possible additional requirements related to public safety.
PAULA BURKES, BUSINESS WRITER