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Where Does the “Open and Obvious” Doctrine Meet the Duty to Keep Premises Reasonably Safe?

In January, the West Liberty University Board of Governors and West Liberty University appealed pretrial rulings in the respondent Stewart Lane’s action for premises liability and/or dangerous conditions. The respondent filed a response supporting the Circuit Court’s order and brought a cross-assignment of error.

Upon appeal, the West Virginia Supreme Court ruled the facts and legal arguments were presented appropriately and that the decision would not have been aided significantly by oral arguments in trial. Whereby, it affirmed the lower court’s order.

Background of the case

In March 2012, 19-year-old Stewart Lane, who was a student at West Liberty University, was swimming with friends at the university’s pool. The lifeguard on duty was a student and employee of the university. Lane asked the lifeguard to set up the portable basketball hoop so that he and his friends could play. She did so, setting it at the pool’s edge.

The hoop had a plastic base that could be filled with water, but there was little to no water in the hoop’s base and no warnings on the hoop itself. The lifeguard admitted she did not have any training in setting up the hoop, but knew the hoop was unstable without water in the base and the hoop could tip over if touched. She claimed to have asked the swimmers if they had used the hoop before and warned them twice that the hoop could fall into the water. However, Lane claims he did not hear these questions or warnings.

When one of the swimmers dunked on the hoop, it fell over. They set the hoop back up and continued playing. Eventually, the hoop fell onto the head of Lane, causing lacerations and bleeding that required plastic surgery and treatment for cellulitis. The plaintiff also had to undergo scar revision surgeries, with medical expenses totaling $36,000 and a permanent facial scar resulting from the incident.

The lifeguard put the hoop in a dumpster near the pool after the incident, notifying her supervisor the next morning of the injuries. The staff did not retrieve the hoop from the dumpster. The plaintiff sued the university claiming it was liable for allowing the swimmers to use the hoop without its base properly set up and filled with water.

The university filed a Motion for Summary Judgment, arguing, inter alia, the open and obvious statute barred Lane’s claims. The Circuit Court denied the Motion, and upon conclusion of a three day trial, the jury determined both the plaintiff and defendants were negligent, but the defendants’ negligence caused the plaintiff’s injuries. On appeal of the open and obvious issue, the Supreme Court sided with the plaintiffs. Specifically, the Court emphasized a landowner’s common law duty to keep the premises reasonably safe, and held the facts developed at trial fell outside the parameters established by the open and obvious doctrine.

To learn more about the use of the open and obvious doctrine in premises liability law, contact Pullin, Fowler, Flanagan, Brown & Poe, PLLC at 304-344-0100 or contact us online.

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