Is a Duty Owed by Landowner for an Open and Obvious Defect?
The recent California case of Nicoletti v. Kest, involved an appeal from a trial court order granting Respondent Dolphin Marina Apartments’ (Dolphin) summary judgment motion against Appellant Susan Nicoletti (Nicoletti).
The appellate court concluded that Dolphin owed no duty to warn Nicoletti of a water current that openly and obviously interfered with one of three building entrances.
In 2020, Nicoletti took her neighbor’s dog for a walk around Dolphin’s apartment complex located in Marina Del Rey, California. Nicoletti observed that it was raining that day with thunderstorms.
At around 3:30 p.m., Nicoletti crossed the driveway of the North Side Gate entrance that led to the underground parking lot. The apartment complex also had a South Side Gate entrance and another entrance on Panay Way.
Nicoletti was a thirteen-year resident of Dolphin’s apartment complex and was familiar with its premises. Nicoletti testified that she had gone past the North Side Gate “thousands of times” before the incident.
Before crossing, Nicoletti observed that the concrete on the North Side Gate driveway was wet, and rainwater formed a current that was running down the driveway. Nicoletti did not observe any caution tape or other warning advisements.
Nicoletti proceeded to cross, and the rainwater current knocked her down. Nicoletti then fell down the North Side Gate driveway and hit the gate at the bottom of the driveway. Nicoletti sustained injuries to her right shoulder, left knee, and face.
Nicoletti filed a complaint against Dolphin alleging general negligence and premises liability because Dolphin had a duty to warn of the running rainwater on the driveway with caution tape or other warning signals.
Dolphin filed a motion for summary judgment arguing that because the running rainwater was open and obvious, Dolphin had no duty to warn.
The trial court granted Dolphin’s motion for summary judgment.
The trial court reasoned that Dolphin did not have a duty to warn of the running rainwater on the driveway because it was a dangerous condition that was sufficiently obvious.
The trial court concluded that a reasonably careful person would know that the running water on the driveway was dangerous and thus, the undisputed facts show that she was aware of an open and obvious condition for which the Defendant had no duty of care about which to warn her.
Nicoletti argued that the dangerous condition caused by the lateral force of rainwater was not open and obvious. As such, Dolphin had a duty to warn of the dangerous condition.
A landowner must maintain land in its possession and control in a reasonably safe condition.
But an accident on a landowner’s property does not necessarily create premises liability.
The elements of a cause of action for premises liability are the same as those for negligence.
The plaintiff must prove duty, breach of duty, causation, and damages.
Whether a duty should be imposed on a defendant in a premises liability action depends on a variety of policy considerations, known as the Rowland factors.
The “most important” of these considerations or factors is “the foreseeability of injury to another.”
A court’s task—in determining duty—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.
Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.
A harm is typically not foreseeable if the “dangerous condition is open and obvious.”
Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.
In that situation, owners and possessors of land are entitled to assume others will "perceive the obvious" and take action to avoid the dangerous condition.
The presence of standing water and the manner in which it drained into or toward the transportation office would have been obvious and apparent to any reasonably observant person, as would the danger that the water might create slippery surfaces and cause one to slip and fall.
As such, the property owner had no duty to warn of the dangerous condition.
Nicoletti contended that although she was aware that it was raining and the ground on the driveway to the North Side Gate was wet with rainwater, she did not know that the current of rainwater posed a danger to her safety.
Nicoletti did not dispute that she observed that there was water running down the driveway.
Running water on a surface is arguably a more obvious danger than standing water. Not only does the water current make the surface slippery, but also a reasonable person would observe that running water could create a force that would cause someone to fall over.
Further, it is a matter of common knowledge among children and adults that wet concrete is slippery and that, when on a slanting incline such as a driveway, it does not provide a safe footing.
Accordingly, the dangerous condition was open and obvious to Nicoletti, and Dolphin had no duty to warn.
Nicoletti further argued that necessity required her to cross the North Side Gate driveway.
The appellate court disagreed, and concluded that she was not required to use the North Side Gate entrance and could have used a different entrance to enter the apartment complex.
While as a general rule, a landowner does not have a duty to remedy or warn of an obviously dangerous condition on his or her property, this is not true in all cases. It is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger.
A landowner’s duty of care is not negated when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.
Nicoletti was not required to use the North Side Gate entrance to the apartment complex. Nicoletti failed to rebut Dolphin’s evidence showing that the apartment complex had multiple entrances.
Nicoletti’s testimony that she commonly used one of the three entrances falls short of establishing a “necessity” to use that entrance when water currents impeded it.
Other residents’ common use of an entrance does not point to a “necessity” to use that particular entrance.
Accordingly, the undisputed facts indicated that it was not foreseeable that Nicoletti would knowingly embrace an entirely obvious risk by choosing to cross the North Side Gate driveway.
The California Supreme Court has declared that courts must assign tort duties to ensure that those best situated to prevent such injuries are incentivized to do so.
Under these circumstances, Nicoletti was in a better position to avoid the obvious danger of walking across a current of water that formed as a result of a rainstorm that began that same day.
Nicoletti could have chosen to use a different entrance.
The burden imposed on Dolphin to constantly monitor weather conditions and immediately install warning signals is outweighed by Nicoletti’s ability to avoid a condition she should have observed as obviously dangerous.
LESSONS:
1. A landowner must maintain land in its possession and control in a reasonably safe condition.
2. The elements of a cause of action for premises liability are the same as those for negligence. The plaintiff must prove duty, breach of duty, causation, and damages.
3. A harm is typically not foreseeable if the “dangerous condition is open and obvious.”
4. Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.