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Court rejects apartment complex claim that camouflaged step is "open and obvious"

This week, a panel of the Court of Appeals reversed the trial court and reinstated Katrina Hilton's injury claim against her apartment complex owner, the Barrington Group, Inc.  The Court also rejected the lower court's decision to set aside a default entered against Barrington previously.

In a very reasoned opinion, the appellate judges pointed out that the single step in the laundry room was "indistinguishable from the surrounding floor," creating an issue of fact with regard to whether it would be "obvious to a reasonable invitee on casual inspection."  The question to be answered, in order to eliminate the defendant's duty to eliminate a hazard, is whether an "average person of ordinary intelligence [would] discover the danger and the risk it presented on casual inspection."  That is, whether the hazard was "known to the invitee, or 'so obvious that the invitee might reaosnably be expected to discover [it].' "  The court also pointed out that the hazardous step was "unavoidable" if a tenant were to use the leased laundry facilities.

With regard to the default, the Court noted that the lower court simply was not provided with adequate evidence to justify its decision to relieve the land-owning partnership of its duty to file a timely answer.  The motion to set aside the substantially-late response alleged that one partner of the partnership was ill, however, it did not address the failure to respond by other general partners.

Finally, the court also criticized the lower court for refusing to consider the affidavit of an engineer filed on the injury victim's behalf.  The appellate court noted that the trial court had misapplied the rules governing what evidence may be considered on the occasion of a motion for summary disposition.

Thompson O’Neil, P.C.
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