Woman cannot sue Walgreen after fall, and also cannot sue floor care company
Tamara Jessee fell in a puddle of water created by a floor washer during cleaning operations at a Walgreen. She alleged that she couldn't see the puddle, despite its contrast in color from the floor, because it was behind a display counter as she turned a corner. The trial court dismissed her case after concluding that the puddle was "open and obvious" eliminating any duty by the property owner to make the hazard reasonably safe for customers. She appealed, arguing that the court wrongly decided a question of fact regarding "open and obvious," and also arguing that it was clear error to apply the latter premises' liability defense to the floor-cleaning contractor's ordinary negligence.
The Court rejected Jessee's "open and obvious" argument and two of the judges also upheld the application of an open and obvious defense to the allegedly negligent actions of the floor cleaner. The third judge dissented from the latter ruling pointing out that multiple decisions have confirmed that "open and obvious" simply does not apply to the allegedly negligent actions of a defendant who is not the possessor of the property.