On December 27, 2012, in Foster v. Costco, 128, Nev. Adv. Op. 71 (12/27/2012) the Nevada Supreme Court once again held that a land owner cannot hide behind the affirmative defense that a hazard was open and obvious to escape liability for having created or maintained an unreasonably dangerous condition.
The case stems from a an incident at a Costco warehouse store, when a patron tripped over the edge of a wooden pallet. The Plaintiff admitted he saw the pallet, but testified he did not see the actual corner of the pallet because it was obscured by an overturned box. Upon motion by Costco, the district court granted Costco summary judgment, ruling that because the condition was admittedly open and obvious, as a matter of law the Plaintiff may not recover.
On appeal the Nevada Supreme Court held that even if the condition was open and obvious, the landowner owes visitors to its stores a duty to act reasonably, and that duty may entail rectifying conditions that are foreseeably dangerous, even if they are open and obvious:
Even if a jury finds the risk to be open and obvious, it must also decide whether Costco nevertheless breached its duty to Forster by allowing the conditions to exist and by permitting Foster to encounter those conditions; and if so, the jury must further determine whether Foster was partially at fault under comparative negligence theories….
Foster, at page 13
Actually, this case is not a departure from Nevada precedent, but rather a clarification of it. In Nevada, owners and occupiers of land have a duty to act reasonably under the circumstances. Moody v. Manny’s Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) (holding there is a general duty to act reasonably to all persons, and doing away with classes of persons in premises liability cases (invitees, licensees, and trespassers)) superceded by statute on other grounds by statute as stated in Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592 (1994). To be sure, if a condition is open and obvious, the Plaintiff will likely be subject to comparative fault in an amount to be determined by the finder of fact. NRS 41.141, Harrington v. Syufy Enterprises, 113 Nev. 246, 250 (1997) (involving a landowner directing pedestrians over an obvious, though dangerous traffic grate). However, in such a case, Plaintiff’s claim is not to be extinguished as a matter of law.
In sum, in Nevada it is still incumbent on an owner or occupier of land to take reasonable steps to ensure his or her land is safe, even if it requires him or her to rectify obvious, yet dangerous conditions.
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