Billie Warren was a medical assistant of Dr. Robert Kenny. One of the perks of her employment was the rent free use of a residential apartment on the second floor of Dr. Kenny’s office building. Ms. Warren’s apartment did not have a washing machine or dryer, but she was allowed to use a washer and dryer located on the balcony of another apartment in the building. However, the balcony could only be accessed through the other apartment or, alternatively, by climbing an unopened, A-frame (carpenter) ladder with a cable lock attached to the iron work on the exterior wall under the balcony. In using this alternate route, Ms. Warren would have to climb either over or under the balcony railings to get from the top of the ladder onto the balcony and vice versa.
On the day of the accident, Ms. Warren successfully ascended the ladder, navigated the balcony railings and started her laundry. Allegedly unknown to Ms. Warren, the balcony railings were only secured to the structure with “screen door hooks” to allow for easy removal of the railings when a tenant had to move large pieces of furniture into and out of the apartment. As Ms. Warren began to exit the balcony, she put her feet on the ladder and her hand on the top railing. At that time, the railing came loose and Ms. Warren fell to the ground and broke her femur. She subsequently sued Dr. Kenny and his insurer for her injuries.
After initial discovery, Dr. Kenny sought summary dismissal of the case on the basis that he could not be held responsible for Ms. Warren’s injuries because the ladder rig was an open and obvious danger and he owed no duty to warn Ms. Warren about such a condition. Ms. Warren, in turn, argued that although the ladder set-up was an open and obvious danger, the condition of the balcony railings only being secured with “screen door hooks” was neither open nor obvious. The court ruled in favor of Dr. Kenny, and Ms. Warren then filed an appeal, Warren v. Kenny (pdf).
The appellate court acknowledged the general rule that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions and to either eliminate them or warn of their existence. But, the court also recognized that a property owner generally does not owe a duty to protect against open and obvious hazards. The court agreed with the trial court’s finding that the property owner did not owe a duty to Ms. Warren to warn her about using the ladder to access the balcony to do laundry, because it was an open and obvious danger. However, the court concluded that the determination of whether the condition of the balcony railings being secured by “screen door hooks” was an open and obvious danger was more appropriately decided at trial. The court added that even if the property owner was found to be at fault, a plaintiff typically will be assigned a significant amount of comparative fault in cases where it is debatable whether the condition was open and obvious.
Take-Away: In order to have a case dismissed prior to trial, a property owner must establish that all conditions of the property that led to plaintiff’s accident and injuries were open and obvious. Otherwise, the case will proceed to trial, though the comparative fault of the plaintiff will be considered along with any potential fault on the part of the property owner.
This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & Moore LLC.