In the case of Dintino v. Hanger Prosthetics & Orthotics E., Inc., 2023-Ohio-797, an appellate court held that the open and obvious doctrine precludes the instant statutory violation/negligence per se claims even when a patient tripped over an orthotic and prosthetic care clinic threshold, which violated commercial building administrative codes, as any defect was open and obvious.
In this case, the patient argued that (1) the open and obvious doctrine does not apply as the threshold violated applicable commercial building administrative codes and (2) that defects in the threshold were not open and obvious to the patient due to the threshold’s different flooring materials. In response, the clinic argued that (1) the open and obvious doctrine applies regardless of whether building code violations exist as such codes are not statutory violations and (2) the defect was, in fact, open and obvious. The appellate court agreed with the clinic.
In support of its decision in favor of the clinic, the appellate court explained that, “[t]he practical effect of a statutory violation or negligence per se is the statutory violation satisfies the breach and duty elements of negligence is an exception to the open and obvious doctrine.” 2023-Ohio-797 at ¶ 25. However, the appellate court went on to explain that building codes violations amount to administrative code violations – and not statutory violations – and, therefore, the open and obvious doctrine applies to the patient’s claims against the clinic. Next, the appellate court explained that, in this case, a reasonable person exercising ordinary care in the same circumstances would have perceived the risk, avoided it, and prevented injury based upon the facts presented by the patient.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney