Court Clarifies Nevada Premises Liability Doctrine in Slip and Fall Cases

Posted by: on Thu, Feb 21, 2013

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Nevada Supreme Court Clarifies Nevada Premises Liability Doctrine in Slip and Fall Cases

Recently, the Nevada Supreme Court decided the case of Foster v. Costco Wholesale Corp., 128 Nev. Adv. Op. 71, 291 P.3d 150 (Nev. 2012) which decision substantially clarified the premises liability doctrine for Nevada business owners in cases involving injured slip and fall plaintiffs.  Such slip and fall personal injury cases are very common against businesses throughout the State of Nevada.

In that case, plaintiff Mr. Foster tripped and fell over a wooden pallet, “which had been positioned in an aisle of the warehouse by a Costco employee.” He testified prior to trial that his left toe caught the corner of the wooden pallet, which was covered by a slightly turned box. Prior to trial, Costo argued that the it had not breached any duty of care owed to the plaintiff since the hazard created by the pallet was “open and obvious” to him. The trial court, relying on prior case law, granted summary judgment, dismissing plaintiff’s case based primarily on application of this “open and obvious” danger rule.

On appeal, the Nevada Supreme Court reviewed the history of Nevada’s case law on premises liability for Nevada business owners, including the “open and obvious” doctrine for premises liability, ultimately concluding that a Nevada landowner is not free from a duty to exercise reasonable care to keep invitees safe even if a danger is “open and obvious”, thereby reversing the trial court and sending the case back for trial.

In reaching this conclusion, the Nevada Supreme Court focused on the newly adopted Restatement (Third) of Torts: Physical and Emotional Harm section 51 (2012), which provides that:

[A] land possessor owes a duty of reasonable care to entrants on the land with regard to:

(a) conduct by the land possessor that creates risks to entrants on the land;

(b) artificial conditions on the land that pose risks to entrants on the land;

(c) natural conditions on the land that pose risks to entrants on the land; and

(d) other risks to entrants on the land when any of the affirmative duties . . . is applicable.

The Court noted that this duty of reasonable care for the safety of persons entering the land extends “to all entrants on the land (except for flagrant trespassers)”, concluding that “landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of dangerous conditions.” The Court then went on, stating that the “duty issue must be analyzed with regard to foresee ability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm.” (Citations omitted).

As a result of the foregoing reasoning, the Court concluded that just because a danger is “open and obvious”, liability to the landowner is not precluded; however, the open and obvious nature of the risk is part of assessing whether reasonable care was employed to protect entrants to the land. Therefore, a fact finder must also take into account “surrounding circumstances, such as whether nearby displays were distracting and whether the landowner had reason to suspect that the entrant proceed despite a known or obvious danger”. (Citations omitted). In addition, a fact finder must also consider separately the entrant’s own actions and whether he or she failed to exercise reasonable self-protection in encountering the danger.

Based on the foregoing analysis, the Court concluded that Costco was not automatically free from liability just because the pallet was open and obvious. Rather, a jury must be allowed to review the facts and decide whether, even if the risk was open and obvious, Costco had nevertheless breached its duty of reasonable care by permitting a customer to encounter those dangerous conditions (and whether the plaintiff was also comparatively at fault for his or her own injuries).

In sum, a landowner in Nevada must make sure that it takes reasonable care to ensure that business property is reasonably safe from natural or artificial dangers to customers. The Nevada Supreme Court has clearly taken a more pro-Plaintiff view of the “open and obvious” danger doctrine, placing greater burden on a landowner or business owner to take greater efforts to protect the safety of land entrants.

Albright Stoddard Warnick & Albright

gma@albrightstoddard.com

702-384-7111

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

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