Owner not responsible for downspout over sidewalk that caused trip and fall
Michelle Manning fell and suffered injury when she stumbled over a downspout on the property of the Iron Horse Country Store. She argued that the downspout was an unsafe condition that violated the Single State Construction Code Act and the regulations adopted pursuant to that act, because it impeded traffic on the sidewalk outside the store. The Court of Appeals rejected her claim and dismissed it. The panel adopted the specious holding that the latter code was not intended to support a private claim by an injured party, even though the judges admitted that the statute was intended to protect the "health, safety and welfare" of the public.
Normally it would be a fact question for the jury to decide whether a particular condition is reasonably safe or hazardous and thus rendering the owner liable for injuries the owner could have prevented. Over the past decade, this basic rule has been abrogated by judicial activists arguing that a premise owner owes no duty to correct or remediate hazardous conditions that are "open and obvious on casual inspection." This defense theory has never applied, however, where the premise owner has violated a statutory duty; and the illegal downspout in this case should have rendered the owner responsible to a jury's analysis of reasonableness.
Unfortunately, the panel considering the issue engaged in a semantic "dodge" that allowed it to expand the "open and obvious" duty exception by questioning whether the SSCCA was "intended to create a private cause of action."