Slip and fall

If you should have seen a danger and didn't then if you're injured it may be your fault.

Holding that the plaintiff's testimony did not establish a genuine issue of fact as to whether an average person of ordinary intelligence and perceptiveness would, in exercising ordinary care, have discovered and avoided the pallet, the court affirmed the trial court's order granting the defendant summary disposition. Plaintiff was shopping at defendant's store, which she described as very brightly lit. She walked down an aisle toward the back of the store, turned at the end of the aisle, and tripped over a three-foot-square wheeled wooden pallet that was right around the corner. "The pallet protruded about three feet into the adjacent aisle, taking up approximately half of it. The color of the pallet contrasted with the color of the floor." Plaintiff testified that she did not see the pallet until after it hit her shin, and that she could have walked around the pallet had she seen it. "Plaintiff jumped onto the pallet with both feet after she struck the pallet, and the pallet then rolled out from under her. She fell to the floor and was injured." The trial court determined that the pallet was open and obvious, and had no special aspects. "The gravamen of plaintiff's argument is that she provided unrebutted testimony that she did not see the pallet and could not have seen the pallet," thus the pallet could not have been open and obvious. "However, openness and obviousness is evaluated from an objective standard, ‘and the inquiry is whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.'" While plaintiff described the pallet as "hidden" and "camouflaged," the evidence contradicted her description. "In fact, it is known that the pallet contrasted with the floor and the area was brightly illuminated. The pallet was merely around a corner." Drawing an inference favorable to plaintiff, the court presumed that the shelving making up the aisles was stocked in a manner that they could not be seen through. However, the court agreed with defendant's argument that it was "impossible for the pallet not to have been visible to a person approaching the end of the aisle before reaching the pallet itself. The pallet stuck out three feet - halfway across the intersecting aisle. If the pallet was directly at the corner of the intersection, some of it would have been visible before reaching the corner itself. If the pallet was far enough back from the corner that it could not be seen prior to turning, then it would have been far enough away for a person to see it and stop after turning. There were no other obstructions to viewing it, nor would it have in any way been indistinguishable from its background." The court concluded that "the only possible way a reasonable person would fail to have noticed the pallet is that the person was not exercising ordinary care." Further, there were no special aspects since plaintiff conceded that she could have easily avoided the pallet had she seen it.