Memorandum

Posted: December 2nd, 2013

Memorandum

To:

From:

Date:    December 18, 2012

Re:

Question Presented

            In the case of Molly Hanson inquires whether box lying on the floor is an obvious open danger to ordinary people with an ordinary perception and judgment. Open and obvious danger doctrine applies where an individual is tasked with the duty to warn others of imminent danger in circumstances which are not considered as express or obvious.  Hence Ms Hanson’s circumstances are questionable as to whether they could be termed as obvious and open.

Brief Answer

            Possibly yes. A danger is termed as open and obvious if it is expressly known by a plaintiff under reasonable circumstances of threat to safety. In the case of  Joseph J. O’Sullivan Vs, Norman Shaw. 431 Mass 201, 2000, the plaintiff was of reasonable knowledge and understood that diving into the shallow end of a swimming pool posed danger to safety. Hence a plaintiff should be  of reasonable knowledge to understand the possibility of danger to individual safety.

Facts

            On the 30^th of august 2012, Ms, Hanson visited Mega Office with the intention of buying school supplies for her children. Her first item in her list came as a new computer for the oldest child Kylie who was supposed to be starting college the next day. She entered the store from the front doors and went directly to the electronics section to purchase a computer for Kylie. She spent around twenty minutes talking to the electronic salesperson and finally decided on a MacBook Pro for her oldest son. Electronic goods are only paid for at the electronics department. However, the salesperson agreed to hold the computer for her if she agreed to leave her driver’s license so that she could shop for other suppliers. Later, she would pay for them at the electronics department.

At the electronics department after picking up all the other supplies she needed, she queued to be served at the only available counter since the store was exceptionally busy. The attendant was new and terribly slow. She started getting impatient after waiting for ten minutes since she was going to pick up her twins from the day care. She could not leave since her driver’s license was held by the salesperson and Kylie needed the computer for her orientation the next day. After she was finally served and her driver’s license returned, she hurried to get out of the store and tried contacting the day care where her twins were getting late from being picked up.

DISCUSSION

Conclusion     

Ms Hanson was of reasonable knowledge and thus the presence of imminent danger was open and obvious to her. Open and obvious danger doctrine hold that the defendant has no right to warn the customers of a danger that is obvious to them.

Rule:

In Hildebrant v Cumberland Farms, Inc. (2001) I’d , the defendant was sued for negligence and found guilty, in that the passageway for the customers was stacked with boxes. Hence, the defendant failed in the role of ensuring that the passage was free from imminent harm for its customers. Hence, using such a precedent the plaintiff was not liable for injuries because she used the appropriate means of movement within the store, which was in an inappropriate condition. It is expressly visible that that Ms, Hanson used the inappropriate path or passage way and used one which posed due danger to her. Hence the defendant is not liable for any tort or damages because “the danger was visible obvious and open to all customers in the retail store” I’d.

Explanation of Rule:

In incidences where open and obvious danger is to a person of ordinary intelligence and judgment is involved, the premises owners are not required to exercise due care. The law considers that people of ordinary intelligence are capable of making a judgment over such obvious open danger and should exercise individual care. It is deemed unreasonable that a person observing reasonable individual care to ensure her safety is likely to suffer injuries from such obvious dangers. To this regards, the issue concerns determining whether the danger was obvious and open requiring no obligation of warning the customers.

Additionally, the duty to warn depends on the form of danger that exists. In obvious and open dangers, injury is not likely anticipated. In such an obvious incident where the danger is open, the premises owner may assume that visitors are ordinary and capable of exercising due care to avoid the danger. Thus, no warning is required. Any warning would not reduce the likelihood of injuries when the customer is already aware of the danger. It makes no difference to warn since warning is meant to inform of the danger of which the customer is not well aware.

Analysis of Rule:

Hence, given the nature of the area she was passing through, it was obvious of the imminent danger. The defendant in this case is not liable to the injuries sustained by the plaintiff, given that the danger of lying box or a box on the way is an open danger noticeable to anybody of average intelligence. Additionally, from the facts it is obvious that the plaintiff was aware she was in a store where boxes are likely to be found in plenty due to stocking of many items. Moreover, she was talking on the phone inside the store meaning she was not taking due care of herself.

The issue in the application of the open and obvious danger to this case concerns whether the open and danger rule eliminated the obligation of the defendant in warning the plaintiff about the box. A box in the way is an obvious danger, and it is up to the individual to avoid it by looking where they are walking. It is provided in the legal arguments that, “the defendant had no duty of warning the plaintiff over an obvious danger of an above ground pool” I’d. This is because it was expressly knowledgeable to users of the swimming pool of the possible dangers of diving into a shallow end. According to the law, the exemption of premise owners from warning visitors is determined by whether the danger is obvious to the ordinary person. From other rulings where this issue has been addressed, it is clear that the issue required no warning to a person of ordinary judgment (Joseph J. O’Sullivan Vs, Norman Shaw. 431 Mass 201, 2000) I’d.

In another case which is Adriance v. Henry Duncan, (1935). Property or landowners have an obligation to provide due care to all people visiting their premises. The duty extends to the obligation of maintaining the property in a reasonable and safe condition in consideration of all circumstances that include the possibility of injuries, their likely magnitude and duty of avoiding the danger. In a rule of survival in an obvious and open danger, a liability of injury is only issued where defendant had the obligation of safety of the plaintiff.

In Hildebrant v Cumberland Farms, Inc. (2001) I’d , the defendant was sued for negligence and found guilty, in that the passageway for the customers was stacked with boxes. Hence, the defendant failed in the role of ensuring that the passage was free from imminent harm for its customers. Hence, using such a precedent the plaintiff was not liable for injuries because she used the appropriate means of movement within the store, which was in an inappropriate condition. It is expressly visible that that Ms, Hanson used the inappropriate path or passage way and used one which posed due danger to her. Hence the defendant is not liable for any tort or damages because “the danger was visible obvious and open to all customers in the retail store” I’d.

Additionally this doctrine is also exercised in the case of Rainka v. Shing (2000) I’d. In the case, the plaintiff tripped over a cardboard box, which was spread out in the driveway of the premise of the defendant. The court held that the danger posed by the cardboards was imminent even though the defendant was tasked with maintaining the safety and exercising duty of care towards the guest at the defendant’s premises. The judge ruled that “the defendants were not required to warn their guests of the danger “because the danger was open and obvious” I’d. .

Restatement of Conclusion  

Ms Hanson was aware she was in a store when she was making a phone call inquiring about her twins. She was liable for her injuries as it was evident to all customers of the imminent danger of walking near the area usually stacked with boxes.