Foster v. Costco Wholesale Corp.

• Decision Date: 27 December 2012
• Docket Number: No. 55284.,55284.
• Citation: 291 P.3d 150
• Parties: Stephen L. FOSTER, Appellant, v. COSTCO WHOLESALE CORPORATION, Respondent.
• Court: Nevada Supreme Court

291 P.3d 150

Stephen L. FOSTER, Appellant,

v.COSTCO WHOLESALE CORPORATION, Respondent.

No. 55284.

Supreme Court of Nevada.

Dec. 27, 2012.

Sterling Law, LLC, and Beau Sterling, Las Vegas; Nettles Law Firm and Brian D. Nettles, Henderson, for Appellant.

Nelson Law and Sharon L. Nelson and Nicholas L. Hamilton, Las Vegas, for Respondent.

BEFORE CHERRY, C.J., PICKERING and HARDESTY, JJ.

OPINION

By the Court, CHERRY, C.J.:

During a trip to a Costco membership warehouse store, appellant Stephen L. Foster tripped and fell over a wooden pallet, which had been positioned in an aisle of the warehouse by a Costco employee. Thereafter, Foster filed a complaint against Costco for injuries sustained from his fall. Costco subsequently moved for summary judgment. The district court granted summary judgmentto Costco, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. Foster appealed.

In this opinion, we examine the evolution of a landowner's duty of care to entrants on the landowner's property and refine the current status of that duty. Traditionally, a landowner had no duty to protect entrants on the landowner's property from open and obvious dangers. This court, along with the vast majority of jurisdictions, has since embraced an exception when the landowner should anticipate the harm despite the hazard's open and obvious nature. By modifying the traditional rule, negligence laws throughout the country have progressed in favor of upholding the general duty of reasonable care. See Moody v. Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) (“[A]n owner or occupier of land should be held to the general duty of reasonable care when another is injured on that land .... [and] determinations of liability should primarily depend upon whether the owner or occupier acted reasonably under the circumstances.”). In recognition of the continuing development of the law governing landowner liability, we adopt the rule set forth in the Restatement (Third) of Torts: Physical and Emotional Harm section 51, and consequently, we conclude that a landowner owes a duty of reasonable care to entrants for risks that exist on the landowner's property.

In accordance with this position, we hold that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner. Here, the district court erred when it found as a matter of law that Costco did not breach a duty of care because the hazard created by the pallet was open and obvious to Foster. Questions remain as to whether the pallet over which Foster tripped was in fact an open and obvious condition, whether Costco acted reasonably under the circumstances by allowing a pallet to impede Foster's path through the aisle without warning, and whether Foster failed to exercise reasonable self-protection in encountering the pallet. Accordingly, we reverse the district court's summary judgment and remand this case for further proceedings.

FACTS

In October 2005, Foster visited a Costco store in Henderson, Nevada, with the intent of purchasing paper goods and general groceries. While searching for trash bags in the paper goods aisle, Foster's left toe caught the corner of a wooden pallet, which was covered by a slightly turned box. Foster fell and sustained injuries. He subsequently sued Costco in district court, alleging that Costco was negligent in creating a dangerous condition and in failing to warn him of the existence of the dangerous condition. Foster claimed that Costco owed him a duty to maintain an establishment free of dangerous conditions, including exposed pallets throughout the aisles.

Foster's deposition was taken, and Costco then filed a motion for summary judgment, contending that the presence of the pallets was open and obvious and that it was not liable for injuries arising from an open and obvious hazard. According to Costco's summary judgment motion, it is undisputed that Foster was in the paper goods section of the warehouse shopping for, among other things, trash bags, when the incident occurred. Foster testified in his deposition that, as he entered the aisle, he saw approximately three pallets on the right side and two pallets on the left side. Each of the pallets had boxes on them. Foster observed a Costco employee moving boxes from the pallets onto the shelves. There were no barricades placed to warn customers or to prevent them from entering the aisle while the Costco employee was restocking the shelves.

Foster also testified that a slightly turned box was hanging over the edge of the pallet that caused his fall. Foster further stated that he was able to see some of the wood comprising the pallet in question and that he was aware that the subject pallet was obscured by a box. However, Foster claimed that he did not see the corner of the pallet. Foster then testified that he looked at the Costco employee moving the boxes, looked up at the displayed products on the shelves, and when he walked around the employee and the pallet, stepped around the slightly turned box thinking that he had bypassed the pallet. But “somehow [his] left toe caught on the corner of the pallet,” and he fell. As a result of the accident, Foster sustained injuries to his left knee, right shoulder, and right-hand ring finger.

In opposing Costco's summary judgment motion, Foster argued that there were material questions of fact as to whether the dangerous condition was obvious, because even though he could see some of the pallet underneath the boxes, he could not see the corner of the pallet due to the way the box was positioned. Foster also asserted that even if the condition was obvious, there were further material questions of fact as to whether Costco was liable in creating or subjecting him to the peril.

The district court granted Costco's motion for summary judgment, finding that the peril created by the pallet was open and obvious to Foster, that the boxes partially concealing the pallet created notice to Foster of the potential hazard, and that Foster's testimony demonstrated his comprehension of the dangerous condition. Citing Gunlock v. New Frontier Hotel, 78 Nev. 182, 185, 370 P.2d 682, 684 (1962), the district court concluded that Costco did not breach its duty of care because under the circumstances, it had no duty to warn Foster or to remedy the open and obvious condition. Therefore, the court concluded that Costco's actions were not negligent. This appeal followed.

DISCUSSION

We take this opportunity to examine the development of the open and obvious doctrine and hold that landowners are not free from the duty to exercise reasonable care solely because the danger posed was open and obvious. In doing so, we adopt the approach taken by section 51 of the Restatement (Third) of Torts: Physical and Emotional Harm: a landowner owes a duty of reasonable care to entrants for risks that exist on the property. Thus, the fact that a dangerous condition is open and obvious does not automatically shield a landowner from liability but rather bears on whether the landowner exercised reasonable care with respect to that condition and issues of comparative fault.

Standard of review

This court reviews a district court's grant of summary judgment de novo, without deference to the findings of the lower court. Klasch v. Walgreen Co., 127 Nev. ––––, ––––, 264 P.3d 1155, 1158 (2011). As part of this de novo review, we consider the evidence “in a light most favorable to the nonmoving party.” Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper only if no genuine issue of material fact exists “and the moving party is entitled to judgment as a matter of law.” Cervantes v. Health Plan of Nevada, 127 Nev. ––––, ––––, 263 P.3d 261, 264 (2011); seeNRCP 56(c).

To prevail on a traditional negligence theory, a plaintiff must demonstrate that “(1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the breach was the legal cause of the plaintiff's injuries, and (4) the plaintiff suffered damages.” DeBoer v. Sr. Bridges of Sparks Fam. Hosp., 128 Nev. ––––, ––––, 282 P.3d 727, 732 (2012). Courts often are reluctant to grant summary judgment in negligence actions because whether a defendant was negligent is generally a question of fact for the jury to resolve. Harrington v. Syufy Enters., 113 Nev. 246, 248, 931 P.2d 1378, 1380 (1997). However, summary judgment is proper when the plaintiff cannot recover as a matter of law. Butler v. Bayer, 123 Nev. 450, 461, 168 P.3d 1055, 1063 (2007). To establish entitlement to judgment as a matter of law, Costco must negate at least one of the elements of negligence. Harrington, 113 Nev. at 248, 931 P.2d at 1380. Here, Costco asserted that, because the risk posed by the pallet was open and obvious, it owed no duty of care to Foster and, therefore, Foster could not prevail on his negligence claim. Whether Costco owed a duty to Foster is a question of law that this court reviews de novo. Sanchez v. Wal–Mart Stores, 125 Nev. 818, 823, 221 P.3d 1276, 1280 (2009); Turner v. Mandalay Sports Entm't, 124 Nev. 213, 217, 180 P.3d 1172, 1175 (2008).

Development of the open and obvious doctrine

With roots in English and early American common law, and most likely derived from the political power of landowners prior to the twentieth century, the open and obvious doctrine eliminates landowner liability to business visitors resulting from open and obvious dangers. Michalski v. Home Depot, Inc., 225 F.3d 113, 118–19 (2d Cir.2000) (outlining the transformation of the open and obvious doctrine); seeRestatement of Torts § 340 (1934) (providing that “a possessor of land is not subject to liability to his licensees ... for...