Ohio has adopted a form of comparative negligence and abolished contributory negligence as a complete defense. With comparative negligence in Ohio if a defendant is 75% negligent, for example, but the plaintiff is 25% negligent, then the plaintiff’s damages are reduced by 25%. Under contributory negligence if the plaintiff was contributorily at fault, he or she recovered nothing. Comparative negligence was enacted to prevent such a harsh result. The fault is allocated and as long as the plainitff is less than 50% at fault he or she can recover.

But not so quick. We have the open and obvious doctrine. An example is found in the case cited above. This is the Robert’s Court’s description of what happened.

In her deposition, appellant acknowledged that she had been to that particular UDF store on a number of prior occasions. Appellant testified that on the date she fell she went to UDF in order to purchase gasoline. Appellant parked her vehicle next to a gas pump and began fueling. After she finished fueling her vehicle, appellant went to pay for the gasoline and walked across the parking lot, onto the sidewalk, and entered the UDF storefront through a set of double doors. Following payment, appellant then walked through the same set of double doors and traversed the same sidewalk to return to her vehicle. However, as she was taking her last step on the sidewalk, appellant’s foot caught in a hole in the sidewalk causing her to fall. Although appellant testified that she did not notice the hole prior to the accident, she described the hole as a “good size hole,” approximately 6? x 6? wide and 3” deep.

The Court determined that since the hole was open and obvious the injured appellant could not recover as a matter of law.
The trite phrase “open and obvious” is a shortcut for judicial laziness and the failure to think critically. When one analyses the facts from the standpoint of duty, the fallacy in the Court’s reasoning becomes clear. When a merchant which relies on customers using its walkways fails to fill or warn against a hole, it has breached a duty to its customers. It is the only party that can fix the defect. It knows about it, it has control over it and it should fix it. Granted if the hole just happens it should have a defense, but the longer it is there, the greater the duty to fix.

So along comes an occasional customer. The customer here exited the store, tripped on the hole and injured herself. When one exits a store, one does not closely study the walkway – one looks at the door, one looks towards one’s destination, one is putting money away, one is avoiding customers coming the other way, or holding the door for those behind. I concede that the customer has a duty to look – but the greater duty is on the store owner to fix the hole.

This is a prime circumstance for comparative negligence. To say that “open and obvious” is a bar, simply resurrects contributory negligence; with a slight amount of negligence on the part of the injured party barring recovery and letting the party with the greater culpability off.
Open and obvious should be relegated to the bin of bad law.