Wade Clark Mulcahy LLP

In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/06/Hinerman-v.-Westmoreland-County-Airport-Authority.pdf">Hinerman v. Westmoreland County Airport Authority</a>,</em> the Hinermans arrived at an airport and attempted to pick up a rental car. They utilized the car’s remote-control features to determine where the car was located. After realizing the car was in a different parking lot than the one in which they were located, the Hinermans chose to cut across the snow-covered grass rather than use cleared walkways. While Mr. Hinerman crossed the snowy divide, Mrs. Hinerman, who took a slightly different route, fell to her knees due to an alleged snow-covered depression of the terrain, injuring her left foot. The Hinermans then claimed the rental car and drove home, and thereafter visited a hospital and sought subsequent medical attention.

The Hinermans’ complaint alleged “a dangerous, defective, hazardous[,] and/or unsafe condition ... characterized by an unmarked hole and/or drop in elevation, located adjacent to a broken, cracked, and uneven parking lot area” and thus there was negligence on the part of the Airport Authority, because the Airport Authority had allegedly failed to “remove, repair[,] or cordon off the unsafe condition….” <em>Id</em>.   By way of defense, the Airport Authority offered the Hinermans’ claims were barred because the Hinermans “voluntarily departed from a paved, cleared street adjacent to the Lot, and was instead deliberately traversing a grassy, unpaved, snow-covered area that she took as a shortcut….” <em>Id</em>. at 2. The Airport Authority thus raised the defenses of open and obvious condition, assumption of the risk, choice-of-ways, contributory negligence, and failure to mitigate damages.

Ultimately, the appellate court agreed and affirmed the trial court’s decision to grant summary judgment in that the Airport Authority did not owe a duty to the Hinermans, because the Hinermans had chosen to cut across an unimproved snow-covered area.  They chose a shortcut, rather than using the cleared walkway or roadway.  Whereas the Hinermans’ contended that the dangerous condition was the ground itself, that the Airport Authority should have known that the dangerous condition existed, and that the snow merely concealed the danger from the Hinermans, the appellate court explained that because the Hinermans had chosen to forego the use of the maintained walkway and roadway, and because the snow itself “due to its inherent tendency to cover uneven patches of ground or other tripping hazards, which constituted the open and obvsious danger,” the Hinermans had accepted the risks involved with traveling across the unimproved land.

Simply stated, when a plaintiff could have avoid danger, but chooses not to, a claim of negligence might be barred due to the plaintiff’s own choice to assume the risk of an open and obvious condition.

Thanks to Ryan Hunsicker for his assistance with this post.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.