By Adam Willfond, City of Indianapolis
In the past few years, both state and federal courts in Indiana have issued opinions on the open and obvious defense. While the defense is nothing new, having some guidance in the way of published (and unpublished) decisions on it should be welcome news for both plaintiff’s attorneys trying to avert a summary-judgment motion and defense attorneys planning to file one. This article briefly explains the defense and provides some highlights on what courts have said is and is not an open and obvious condition.
Start with the obvious—no pun intended. Under Indiana premises-liability law, the owner or possessor of land owes the highest duty of care to its invitees: the duty to exercise reasonable care for their protection while they are on the premises. Roumbos v. Vazanellis, 95 N.E.3d 63, 66 (Ind. 2018). When a physical injury occurs because of a condition on the land, the three elements described in Restatement (Second) of Torts Section 343, accurately describe the landowner-invitee duty. Rogers v. Martin, 63 N.E.3d 316, 322-23 (Ind. 2016). Section 343 provides:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, but only if, he:
- knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
- should expect that they will not discover or realize the danger, or willfail to protect themselves against it, and
- fails to exercise reasonable care to protect them against the danger.
Both the Indiana Supreme Court and the Restatement instruct that Section 343 “should be read together with Section 343A.” See Roumbos, 95 N.E.3d at 67; Restatement § 343, cmt. a. Under Section 343A, “A possessor of land is not liable to his invitees for physical harm caused to them by an activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement § 343(A)(1). In short, defendants owe no duty to plaintiffs to protect them against open or obvious dangers or conditions. So what have courts in Indiana said on the topic of what constitutes an open and obvious danger or condition? A non-exhaustive list reveals the following:
- A slippery bathtub—without or without standing water in it—was open and obvious. Lin v. Sheraton License Operating Co., LLC, 2020 WL 6274839 (S.D. Ind. Oct. 26, 2020).
- A two-inch differential between a sidewalk and adjacent ground was open and obvious. Lowrey v. SCI Funeral Servs., Inc., 163 N.E.3d 857 (Ind. Ct. App. 2021), trans. denied.
- Factual disputes precluded the Indiana Supreme Court from finding that a phone cord and other wires on a hospital floor—which may have been obscured by a table—were an open and obvious condition. Roumbos, 95 N.E.3d 63.
- Loose landscaping rocks on a sidewalk were not open and obvious to the plaintiff who did not see them before falling. Converse v. Elkhart Gen. Hosp., Inc., 120 N.E.3d 621 (Ind. Ct. App. 2019).
- An air hose which the plaintiff tripped and fell on was an open and obvious condition where he visited the facility almost every day for years and was familiar with the lack of illumination in the area. Podemski v. Praxair, Inc., 87 N.E.3d 540 (Ind. Ct. App. 2017), trans. denied.
- A set of unilluminated stairs in a hotel suite, regardless of their tread depth, was an open and obvious danger. Smagala v. Embassy Suites Mgmt., LLC, 2020 WL 208804 (S.D. Ind. Jan. 14, 2020).
- It was the province of the jury to decide whether a large pothole that the plaintiff tripped and fell on was an open and obvious danger. Akinsulire v. Wal-Mart Stores East, LP, 2020 WL 10354927 (S.D. Ind. Sept. 2, 2020).
Whether a danger or condition is open or obvious is not a plaintiff-specific or subjective inquiry. Smagala, 2020 WL 208804, at *3 (citing Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 20 (Ind. Ct. App. 2015) and Roumbos, 95 N.E.3d at 67). Instead, the inquiry “asks how owners of business premises should expect reasonable customers to understand and react to risks.” Id. The open and obvious defense is sure to be litigated more in both the state and federal courts. And it’s worth getting acquainted with—no matter what side of the “v” your client is on.
If you would like to submit content or write an article for the Litigation Section, please email Kara Sikorski at ksikorski@indybar.org.
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