Jeffrey Beausay

Archive for the ‘Negligence Per Se’ Category:

Open and Obvious Hazards

Where a danger is “open and obvious,” a landowner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 2003-Ohio-2573. The owner or occupier may reasonably expect that persons entering the premises will discover those dangers, and take appropriate measures to protect themselves.” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644.

Negligence Per Se Exception

The open and obvious defense does not apply if the defendant was “negligent per se” for violating a safety statute. See Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, para. 25; Chambers, 82 Ohio St.3d at 567-8.

Violation of Ohio Basic Building Code: In Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, the Ohio Supreme Court held that an open and obvious hazard does not create liability (i.e., an injured person cannot recover), even if the hazard is a violation of the Ohio Basic Building Code. The basis for this distinction is that statutes “reflect public policy,” whereas administrative rules are created by administrative agency employees who act to implement the General Assembly’s public policy decisions.

Danger Created by Independent Contractor: An independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property.” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642.

Tags: Premises Liability

Negligence Per Se

Negligence is a failure to do what the reasonable person would do under the same or similar circumstances. We also refer to this as the “standard of care.” The standard of care to be exercised for the protection of others can be established by legislative enactment, judicial decision, or by the facts and circumstances of the case.

Where a statute or ordinance imposes a specific duty, or prohibits certain conduct, for the protection of others, and the failure to perform that duty, or the violation of the prohibited act, results in injury to another, the person is “negligent per se” or negligent “as a matter of law.” See Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367; Swoboda v. Brown (1935), 129 Ohio St. 512.

The violation of an administrative rule does not constitute negligence per se; however, such a violation may be admissible as evidence of negligence. Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563; Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495 (The open and obvious doctrine may be asserted as a defense to a claim of liability arising from a violation of the Ohio Basic Building Code.”)