 |
| Google Gemini CC0 |
The plaintiff injured her ankle when she left her apartment because, she alleged and the jury agreed, the landlord had removed a platform that usually stood outside the door, thus increasing the height of the step.
The defendant argued that the absence of the platform was an "open and obvious" condition, thus negating the duty a landlord usually owes to a renter. Maybe so, the court opined, but the proposition only raises a question of fact appropriate for resolution by the jury. And the jury here decided that the defendant should have foreseen the plaintiff's unawareness of the platform's absence.
"Open and obvious" is a term oft used in the law in different contexts, with seemingly magical effect, so it's important to specify first that the term arises here in the context of landowner negligence. Its use even in this vein is historically and persistently ambiguous.
The ambiguity arises in part from the fact that "landowner negligence" is often described in terms of the duty that a landowner owes to one who comes onto the land. But functionally, the rules of landowner negligence operate as rules of breach of the standard of conduct, or defendant's "negligence." The distinction is theoretical and often functionally insignificant. But it can be procedurally important, because the existence of a duty is—not exclusively, but let's gloss that over—a question of law for the court to decide, while breach presents a question of fact for the jury to decide.
The rules that American common law has evolved for landowner negligence sensibly require some degree of plaintiff's unawareness of the danger. Depending on the plaintiff-defendant relationship, the plaintiff's unawareness might be tested according to the defendant's reasonable anticipation, the plaintiff's reasonable anticipation, or the plaintiff's subjective knowledge. Whatever the test, bearing the burden of proof, the plaintiff alleges that unawareness. The defendant may declare in response that the danger was "open and obvious," thus making clear that the plaintiff's allegation cannot be believed.
What has not been clear in common law, historically, is the procedural impact of the declaration. Was the "open and obvious" declaration an affirmative defense, for which the burden of proof shifted to the defendant, or merely a refutation of the plaintiff's proof of unawareness? Was the "open and obvious" declaration equivalent to a "no duty" argument that the court must resolve expeditiously as a matter of law, or is the declaration a factual description that must be placed in the hands of the jury? Courts answered these questions variably, creating confusion.
In helping law students to understand the contemporary import of "open and obvious" in the multistate norms of American common law landowner negligence, my preference is to impress upon them that the term usually is not, or ought not be, a magical incantation. It's alliteration is alluring but deceptive. In contemporary doctrine, the declaration of "open and obvious" should be understood merely as a defense allegation of fact, and a refutation of the plaintiff's proof. The burden of proof does not shift, though it must be acknowledged that a credible declaration might obviate the need for a jury trial.
If the danger indeed is so open and obvious that ordinary minds could not differ on the question of plaintiff's unawareness, then the usual operation of civil procedure allows the court to decide the question of fact as a matter of law, in which case the court may do so pretrial and under the banner of duty or breach. If the answer is not so obvious as the defendant contends, then a motion to dismiss as a matter of law is properly denied, and the question is advanced to the jury as one of fact.
That's the approach that seems to have evolved in Massachusetts, though the appellate court has not always been clear about the mechanisms under the hood. In the instant case, the court wrote that the "open and obvious" declaration presented a question of fact that was properly referred to the jury for resolution. The court also described the "open and obvious" allegation as seeking to negate the defendant's duty to the plaintiff. That's not wrong, but it might be confusing, because the jury usually is charged with examining elements of breach, not duty.
In an earlier case, Ward v. Schnurr (Mass. App. Ct. 2023) (The Savory Tort (Sept. 28, 2023)), the court affirmed dismissal of a negligence claim in favor of a landowner in part upon the defendant's allegation of "open and obvious," also referencing the duty owed, but without a jury ever having been impaneled. In that case, the plaintiff had been hired by the defendant specially to remediate the dangerous condition, so the plaintiff's assertion that it was unaware of the danger ran into trouble on the sniff test. The "open and obvious" allegation was therefore properly decided as a matter of law, even though it was a question of fact. The court did not, however, go out of its way to make that clear.
In neither case did the court indicate that any burden shifting had occurred. I don't think it did. But there again, it would have been helpful if the court had said that.
Doctrinal confusion over "open and obvious" thus persists, in Massachusetts and elsewhere. It only makes matters worse that what I describe here as my understanding of Massachusetts law, as well as what I sell to students as multistate norms, is not the law everywhere in all circumstances.
There is a deeper theoretical truth at work here, almost a philosophical question, one that I encourage first-year students in Torts to embrace and play with before the remainder of the "hands-on," widget-making law school curriculum beats out of them any appreciation for law as a worthwhile intellectual pursuit. The truth is that duty and breach are not really distinct things, rather, are more like two sides of the same coin. Thus, the tort scholar William Prosser once said, "Circumlocution is inevitable."
For now, to quote the scholar of popular culture Trevor Noah, "ain't nobody got time for that."
What I'd like to know more about, meanwhile, are the family dynamics behind the instant case. The defendant landowner was, the court revealed, the plaintiff renter's mom. I hope the case was motivated by access to insurance and not bad blood, though neither scenario speaks well of American civil dispute resolution.
The case is Varley v. Walther, No. 24-P-511 (Mass. App. Ct. May 16, 2025). Justice Gregory I. Massing wrote the opinion of the unanimous panel that also comprised Justices Hershfang and Tan.
