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Open And Obvious Danger Defense Affirmed In Federal PA Case

February 10, 2023

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In recent case of<em> <a href="">Pusateri v. Wal-Mart Stores East L.P.</a></em>, the United States District Court for the Western District of Pennsylvania found that under PA state law, landowners do not owe business invitees a duty of care for open and obvious dangers that can be avoided through invitees’ exercise of ordinary care. In <em>Pusateri</em>, plaintiff sued Walmart Stores East, L.P. (“Walmart”), alleging negligence as to a business invitee on the theory of premises liability. Plaintiff attempted to avoid a collision with an approaching employee’s shopping cart, and backed into a product display that was in the middle of an aisle at Walmart, causing her to fall. However, in the minutes leading up to the incident, Plaintiff had walked past the display four times. Walmart moved for summary judgment arguing that it did not owe, and thus could not have breached, a duty to Plaintiff because the product display was “open and obvious.”

While it was undisputed Plaintiff was a business invitee at the time of the accident, the court cited PA’s settled adoption of Section 343 of the Restatement (Second) of Torts, a landowner is liable for “for physical harm caused to his invitees” if, and only if he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The court further noted that:

Section 343A of the Restatement further provides that ‘[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’

The court finally reasoned a landowner should only “anticipate the harm despite such knowledge or obviousness” in situations where the exercise of ordinary care on the part of an invitee, would be insufficient to avoid the open and obvious danger.

While the court ultimately dismissed the motion for summary judgment because the employee’s shopping cart created a distraction for Plaintiff that rendered the obviousness of the product display a question for the jury, the holding confirmed that where a danger is open and obvious, and the danger can be avoided by the exercise of ordinary care, landowners do not owe business invitees a duty of care.  <em>Pusateri </em>is a victory for defendant landowners in that it limits the duties owed to invitees which in turn limits potential exposure to liability.

Thanks to Stephen Kerstein for his assistance in this article.  Should you have any questions, please feel free to contact <a href="">Tom Bracken</a>.

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