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Steven J. Klearman
Steven J. Klearman
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Nevada Supreme Court Revisits Open and Obvious Premises Cases

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In Foster v. Costco, 128 Nev. Adv. Op. 71 (2013), the Court revisited the contentious subject of open and obvious conditions.

Those who handle premises liability cases know that an increasing number of Nevada District Court judges were entertaining defense motions for summary judgment on this issue. Hopefully after Foster this trend will stop.

In October 2005, Plaintiff Stephen Foster visited a Costco store in Henderson, Nevada. While walking down an aisle, Foster’s toe caught the corner of a wood pallet, which was covered by a slightly turned box. Foster fell and was injured. He sued Costco and maintained that Costco owed him a duty to maintain an establishment free of dangerous conditions, including exposed pallets in aisles.

After Foster’s deposition Costco filed a motion for summary judgment, contending that the pallet was an open and obvious hazard. Foster testified in deposition that he was able to see some of the wood comprising the pallet in question and that he was aware that the subject pallet was obscured by a box. However, he also testified that he did not see the corner of the pallet.

In opposing summary judgment, Foster argued that there were material questions of fact as to whether the dangerous condition was obvious, because even though he could see some of the pallet underneath the boxes, he could not see the corner of the pallet due to the way that the box was positioned on it. The District Court granted summary judgment, citing one of the Nevada defense attorneys’ favorite golden oldie premises cases, Gunlock v. New Frontier Hotel, 78 Nev. 182, 185, 370 P. 2d 682, 684 (1962).

The Court used the Foster case to reexamine development of the open and obvious doctrine and held that landowners are not free from the duty to exercise reasonable care solely because the danger posed was open and obvious. The Court looked to section 51 of the Restatement (Third) of Torts: Physical and Emotional Harm and concluded that the fact that a dangerous condition is open and obvious does not automatically shield a landowner from liability but rather bears on whether the landowner exercised reasonable care with respect to that condition and issues of comparative fault.

The Court observed that Costco had to negate at least one element of negligence in order to prevail on summary judgment. Costco argued that there was no duty because the risk posed by the pallet was open and obvious. The Court disagreed, citing to the Restatement and indicating that the duty issue 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.

The Court held that while the open and obvious nature of a condition does not automatically preclude liability, it instead is part of assessing whether reasonable care was employed. In considering whether reasonable care was taken, the fact-finder must also take into account the surrounding circumstances.

Separate from this assessment is consideration of whether the plaintiff failed to exercise reasonable “self-protection” in encountering the danger. This factor is considered in apportioning comparative negligence when awarding damages.

The Court concluded that Costco was 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, said the Court, that Foster walked down the paper goods aisle without observing the corner of the subject pallet because it was obscured. Even if a jury found the risk to be open and obvious, it must also decide whether Costco nevertheless breached its duty of care to Foster by allowing the conditions to exist and by permitting Foster to encounter those existing conditions. If so, the jury must further determine whether Foster was partially at fault.

The law of Nevada is that an owner or occupier of land should be held to the general duty of reasonable care when another is injured on the land and determinations of liability should primarily depend on whether the owner or occupier acted reasonably under the circumstances. A landowner owes a duty of reasonable care to entrants for risks that exist on the landowner’s property. Rather, the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner and does not automatically defeat a landowner’s duty.