Appeal in slip'n'fall points to deeper mysteries of historical 'open and obvious' danger doctrine

Google Gemini CC0

Rejecting the phrase "open and obvious" as magical incantation, the Massachusetts Appeals Court Friday affirmed a slip-and-fall jury award for an apartment dweller against her landlord.

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.

N.J. limits mode-of-operation doctrine in classic slip-and-fall claim over grocery store grapes

Open Food Facts CC BY-SA 3.0

A grocery-story-grape, slip-and-fall case in New Jersey prompted the state high court to limit the mode-of-operation doctrine in premises liability.

I don't usually take interest in the nuances of New Jersey tort law, but the mode-of-operation doctrine is a significant player in Massachusetts, where I teach. Also, slipping on grocery-store grapes is so prototypical a case in the doctrine that it's a cliché, so I could not resist.

"Mode of operation" enjoys wide but not universal support in U.S. tort law. As well explained by Wilson Elser attorney Jennifer L. Moran in commenting on the New Jersey case:

[The] doctrine relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in a situation in which a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents. The rule has been applied where food is sold or served in open containers or bins, such as food courts, supermarkets or fast food restaurants. In many cases, a plaintiff’s failure to provide any evidence that the defendant had actual or constructive knowledge of the alleged dangerous condition is the defendant’s sole opportunity to obtain summary judgment to dismiss the claim. 

The doctrine is highly correlated with self-service business, and, as I said, grab-and-go grocery-story grapes count. 

A friend of mine is a grocery store manager in Australia, and you don't want to get him started on grape-related customer slip-and-falls. The aggravation is multiplied by customers' insistence on eating the merchandise, which one might think should bring some kind of assumption-of-risk theory into play. The store once tried to sell grapes in sealed bags, my mate said, but did away with them because customers were outraged to see their nicking snackery curtailed. The store had to tolerate losses and risk as a cost of customer satisfaction. My mate was elated at the advent of no-slip flooring in the produce department.

Anyway, you can see why innovation in the presentation of grape inventory has been a big deal in the grocery biz. And Sam's Club no doubt thought it was onto something big when it started selling grapes in clamshell containers.

In the New Jersey case, the court held 4-2 that the clamshell packaging moved grapes out of the mode-of-operation doctrine. Moran explained:

The court therefore found there was no foreseeable risk that grapes would fall on the ground in the process of ordinary handling by customers. The court held the mode of operation doctrine did not apply and the plaintiff had to establish the defendants knew or should have known that the grapes were on the floor for a period of time prior to the accident and failed to take reasonable remedial action. In this recent decision, the court limits the application of the mode of operation doctrine because the merchandise was in a sealed container, finding the pre-packaged merchandise did not create a foreseeable risk of spillage and there was no nexus between the plaintiff’s fall on grapes and the self-service sale of grapes in containers.

Sam's Club accomplished something that had eluded a defendant in 2003, Moran further recounted, when the court refused to suspend mode of operation for "grapes that were sold in open-top, vented plastic bags that permitted spillage."

If shoppers remain true to form, the dissent might have the better argument in the end. Dissenting justices opined that Sam's Club knows that its customers still open the clam shells in the store, setting grapes loose.

The case is Jeter v. Sam's Club, No. A-2-21 (085880) (N.J. Mar. 17, 2022). Justice Lee A. Solomon wrote the majority opinion.

Accidental deaths on nonpublic stairways threaten public transit with tort liability in London, Boston

Canning Town Station in 2020
(photo by Ewan Munro CC BY-SA 2.0)

An English court last week exonerated the London Underground of liability in the death of a trespasser who fell down fire-escape stairs; meanwhile, in New England, investigation continues into the death of a Boston professor who fell from disused stairs in the Massachusetts Bay Transportation Authority (MBTA) system.

The facts of the cases differ, but both point to the obligation of aging transit systems to secure their physical infrastructure, even against risks to trespassers.

Bernard Ovu, a 35-year-old IT specialist for the UK Bar Council, fell, hit his head, and died in 2017.  On a meandering journey on a bitter-cold night, Ovu was returning home from a wedding; a post mortem test reported his blood-alcohol level at 0.176%.  At about 2 a.m. at the Canning Town Station, Ovu went through an emergency exit door, where an emergency stair led to a second door to the street.  Surveillance showed that Ovu reached the street-level exit door, but, for unknown reasons, did not push it open.

An image in the Ovu opinion depicts Canning Town Station.
The triangle marks the platform exit; the square marks street
access. Ovu fell at the circle.

Meanwhile, responding to a silent alarm, an Underground worker had secured the platform-level door.  Evidence showed that Underground policy required workers to sweep the area before re-securing the door, but no sweep was done.  Underground officials knew the emergency way was accessed occasionally, especially in late-night hours, by persons seeking to urinate or vomit.  Ovu could not reenter the platform and apparently believed himself trapped.  Seeking another exit, he fell on the stairs at 2:49 a.m. and died, possibly as a result of the combination of his injuries, intoxication, and the below-freezing temperature.

A professor in the Boston University School of Public Health, David K. Jones also was in a place where he should not have been.  The 40-year-old was out for a Saturday morning run in September when he took a staircase down from an overpass near the JFK Station.  The staircase was rusted and missing six steps: a gap through which Jones fell 20 feet to his death.  The staircase had been closed for 20 months and was fenced off at top and bottom; it is unknown how or why Jones entered it.  The MBTA removed the stairway days after the accident.

With investigation continuing in the Jones accident, the MBTA system has since suffered a bloody escalator accident and a pedestrian near-miss with debris falling from a stairway.  Commentators have thus linked the state of the transit system with the national debate over infrastructure financing.

The court in the Ovu matter ruled that Ovu was a trespasser in the emergency way and that the Underground had conducted itself reasonably relative to that status.  Despite the Underground's derogation of policy, Ovu had arrived in his predicament through his own misfeasance, and he was not in fact trapped.  It remains unclear whether Jones knowingly passed through secure fencing; if he did, then he was a trespasser on the rusty stairway from which he fell.  If that was the case, then Massachusetts law would not preclude liability, but would afford less latitude to a plaintiff than UK law.

Historically, common law was unforgiving of trespass.  The web of rules that evolved for the problem of landowner liability for dangerous conditions varied the liability rule depending on the status of the injured person.  At its simplest, distinctions were drawn in the three categories of public invitees, social guests ("licensees"), and trespassers.  The latter were owed little in the way of landowner duty, at most to refrain from the intentional or reckless infliction of harm.

Common law complexity has gradually given way to a unitary "reasonableness" standard, under which the status of the plaintiff is referred to the jury as a circumstance for its consideration.  When the Washington Supreme Court chose to retain the common law framework in 1986, it observed that only nine states had moved to the unitary standard—as well as England, by statute.  Today, half of states have adopted the unitary standard, and it is favored by the Third Restatement of Torts.

But among unitary-standard states, trespassers are not necessarily incorporated, reflecting a continuing vitality in their common law disfavor.  States, including Massachusetts, exclude trespassers from the unitary standard by a ratio better than two to one.  After some wrangling in the case law, the UK by statute incorporated trespassers into the unitary standard.

Thus, Ovu, even as a trespasser, was owed a duty of reasonable care.  A Massachusetts trespasser can prevail only upon proof of reckless or intentional wrongdoing.  If the estate and family of Jones seek liability from the MBTA, they will be far better off if the investigation uncovers a defect in how the stairway was secured.  If Jones made an innocent mistake of fact, then plaintiffs might hope to challenge his status as a trespasser and move him to within the unitary reasonableness standard.  That uncertainty might explain why there has not yet been report of a lawsuit in the Jones matter, while the Sept. 26 escalator accident yielded a suit by the first of October.

It happens that the Massachusetts Appeals Court heard a case about just such a mistake of fact in 2016.  In Bernier v. Smitty's Sports Pub, Inc., a pub patron in his 70s, Ronald Leger, was killed when he fell down a dark basement stairwell with uneven steps.  Leger mistook a door marked "Employees Only" for the entrance to the men's room.  He had been drinking, but had been to the pub and used the restroom before.  The door usually was locked, and there was no evidence that a patron had made the same mistake before.

The trial court in Bernier ruled Leger not a trespasser.  The adequacy of the marking on the unlocked door, at the pertinent time at which Leger stood before it, was incorporated into the question of negligence for the jury's consideration.  The jury awarded the plaintiffs 80% recovery after reduction for Leger's own negligence in making the mistake.

On appeal, the court affirmed.  The status of a visitor on land, trespasser or otherwise, was properly a question of law for the trial court, the Appeals Court opined.  The jury verdict was sufficiently supported by the evidence.  One could imagine a similar analysis in the Jones matter.

The English case is Ovu v. London Underground (Q.B. Oct. 13, 2021).  Master Victoria McCloud authored the opinion.  HT @ Gordon Exall, Civil Litigation Brief, via Private Law Theory.  Wells, Anderson, & Race, LLC, Denver, Colo., prepared a 50-state survey of landowner liability regimes in the United States in 2015 for the National Association of Minority & Women Owned Law Firms.