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Steven J. Klearman
Steven J. Klearman
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Nevada Supreme Court Reaches Precedent Decision in Premises Liability Case

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The Nevada Supreme Court published a landmark ruling dealing with premises liability on December 27, 2012. The Court, in Foster v. Costco, 128 Nev. Adv. Op. 71, took a long look at the history of landowner liability in Nevada and held that the mere fact that a condition may be open and obvious does not automatically negate a landowner’s duty of care to someone injured on his property by the allegedly open and obvious condition.

Defendants in Nevada premises cases have often moved for summary judgment (arguing that no genuine issues of material fact exist and so the case can be decided as a matter of law) in “open and obvious” cases. This will likely stop nearly completely with the Court’s holding in Foster.

In reaching its holding, the Court adopted the Third Restatement of Torts: Physical and Emotional Harm section 51 (2012):

A land possessor owes a duty of reasonable care to entrants on the land with regard to:

  1. conduct by the land possessor that creates risks to entrants on the land;
  2. artificial conditions on the land that pose risks to entrants on the land;
  3. natural conditions on the land that pose risks to entrants on the land; and
  4. other risks to entrants on the land when any of the affirmative duties is . . . applicable.

This duty is extended to all entrants on land, not just those invited. Landowners bear a general duty of reasonable care to all entrants, stated the Court, regardless of the open and obvious nature of dangerous conditions.

The duty must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm.

In considering whether reasonable care was taken, the fact-finder must also take into account the surrounding circumstances, such as whether the landowner had reason to suspect that the entrant would proceed despite a known or obvious danger.

Separate from but related to the reasonable care assessment is consideration of the entrant’s actions and whether he or she failed to exercise reasonable self-protection in encountering the danger.

The Court determined in this case that 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 dangerous condition (a pallet extending into the aisle). Even if a jury found the risk to be open and obvious, it must also decide whether Costco breached its duty to allow the condition to exist. And a jury must also be allowed to examine Foster’s own negligence, if any. The Court therefore remanded back to the District Court for further review.