Elderly woman's fall at store entrance is summarily dismissed, despite testimony that employee was unaware of "open and obvious" hole in asphalt
In Villaneueva v. Cherry Belt Party Store, the Court of Appeals overturned the trial judge's decision, and granted summary disposition of an 82-year old's injury claim. The elderly plaintiff suffered injury when she stepped in a "hole" at the junction of the parking lot asphalt with the cement entry way. She claimed that she didn't see the hole because it wa in an area where cars parked and not readily discernible. She also pointed to testimony from a store employee affirming that the employee had never noticed the presence of the hole and would not have expected a customer to notice it.
Nevertheless, the Court of Appeals pointed to the fact that the elderly woman admitted on cross-examination that "the sidewalk and hole were readily observable" and that she was "looking straight ahead" when she fell [rather than looking at the ground]. On that basis, the Court concluded that the store owed no duty to repair the hole at the entrance, because it was "open and obvious."