Yet another claim dismissed as "open and obvious" despite Defendant's employee's admissions
Merle Minehart fell in a Kroger store. She tripped on a shopping cart bumper located adjacent to a newspaper display in a very narrow aisle. The Kroger employees had acknowledged that the bumper was a "trip hazard" and that whether it was readily observable depended upon the observer's perspective. The Plaintiff argued that since it was located immediately behind the newspaper display in a narrow aisle, the six-inch bumper was not "apparent to a casual observer" and therefore Kroger owed a duty to remove or remediate the "trip hazard." The trial court agreed and denied Kroger summary disposition.The Court of Appeals rejected Minehart's argument and reversed the lower court's decision. The appellate court, including Judge Henry Saad who always rules in favor of insurance interests, held that Minehart's claim that the bumper "was difficult to see" did not create a genuine issue of fact, and that since she wasn't looking down when she tripped, her claim was defeated because "a resonably prudent person will look where he is going."
Further, the court pointed to recent post-"Engler majority" decisions repudiating the prior common law addressing distractions erected by a landowner. Where previously our courts had required fact-finders to take into account merchandise displays in assiging fault, the post-Engler Majority "reformers" have suggested that "while 'shoppers in modern grocery stores are often distracted by displays and merchandise...mere distractions are not sufficient to prevent the application of the open and obvious danger doctrine'." Given the holding, Minehart's claim is permanently dismissed and Kroger does not need to defend (or fix) the "tripping hazard."