Premises Liability Victory

In Nagy v. The Fred W. Albrecht Grocery Co., Evan Palik of CRUG’s Akron Office successfully defended a grocery store in a premises liability claim brought by an employee of a contractor injured during renovations to the store.

The employee fell into an excavated trench and suffered a fractured ankle on the store’s premises.  He claimed that the store actively engaged in conduct that concealed the hazard in violation of a premises owner’s common law and statutory duty.  Evan prevailed in the trial court on summary judgment.

The employee appealed, but Ohio’s Ninth Appellate District affirmed and held that the employee at an inherently dangerous construction site was admittedly already aware of the excavation and as such, the excavation was open and obvious for which there is no duty to warn. In so holding, the appellate court reaffirmed the following principles of negligence and premises liability law in Ohio:

• The existence of a duty in a negligence action is a question of law for the court to determine.
• Where there is no duty or obligation of care or caution, there can be no actionable negligence.
• An owner of a construction site who merely directs an independent contractor to perform a task required by contract specifications but does not retain control over the means or manner in which that task is performed, does not owe a duty of care to an employee of a subcontractor who is subsequently injured as a result of the other contractor’s performance of the task in an unsafe manner.
• The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge.