Premises Liability: The Open and Obvious Hazard and Assumption of Risk

October 12th, 2015


If you are from southern Missouri, there is no doubt you have invited yourself to the aroma of stewed tomatoes, fried potatoes, okra, and, of course, warm rolls from Lambert’s Café. For decades, Lambert’s Café has operated its restaurants in Sikeston and Ozark, Missouri and has become famous for being the “Home of Throwed Rolls.”

Recently, however, you may have seen that a patron of this long-standing establishment sustained injuries after being struck in the eye by a bread roll. See Tucker v. Lambert’s Café, Case No., 15CG-CC00236 (Cape Girardeau, Missouri Circuit Court). Now, being subject to litigation, this begs the question: Is Lambert’s Café’s practice of throwing rolls to its patrons a dangerous or defective condition? If so, has Lambert’s Café’s reputation and advertisements created an open and obvious hazard or provided an argument that patrons assume the risk under the circumstances?

To prevail on a premises liability claim under the circumstances, a plaintiff in Missouri must show that:

1. A dangerous condition existed on the premises;

2. The possessor of the premises knew, or, through the use of ordinary care, should have known of the condition; and

3. The possessor failed to use ordinary care to remove, remedy, or warn of the danger;

4. As a result, plaintiff was injured. MAI – 6th 22.03

The possessor of a premises is liable when it is shown that the dangerous condition of the premises involved an unreasonable risk of harm to the plaintiff, and that the possessor of the premises should expect that the plaintiff would not have discovered or realized the danger or would fail to protect herself against such danger. Crow v. Kansas Power & Light Co., 174 S.W.3d 523 (Mo. Ct. App. W.D. 2005). With the language of the Crow decision in mind, the possessor of a premises can defeat a premises liability claim if an open and obvious hazard is shown.

An open and obvious hazard is a hazard that is known or reasonably discoverable by the plaintiff. Even if a hazard is known or reasonably discoverable, however, a possessor of a premises may still be found liable if the possessor should anticipate the harm to the plaintiff despite plaintiff’s knowledge of the condition or its obviousness. However, everyone has a duty to exercise due care for his or her own safety, and a duty to look for those things that can be seen or foreseen, so that the possessor of a premises has a right to expect plaintiff to exercise ordinary care or prudence to avoid injury to themselves. Crow, Id.

An assumption of risk can be express or implied. An implied assumption of risk is divided into the implied primary assumption of risk and the implied secondary assumption of risk. An implied primary assumption of risk is a complete defense to a premises liability claim and occurs when a plaintiff voluntarily enters into a relationship with a possessor of a premises involving certain well-known incidental risks. An implied secondary assumption of risk is a ground for apportionment of fault between the parties and occurs when a party breaches a duty of care, and the other party chooses to encounter the known risk arising from that breach of duty. Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 395 (Mo. Ct. App. W.D. 1999).

Arguably, a dangerous condition existed at Lambert’s Café, the “Home of Throwed Rolls.” The practice of throwing rolls may be inherently dangerous. Whether it be the employee tossing a roll astray or the patron making an Odell Beckham Jr. attempt at catching it, injury could result. Whichever the circumstance, Lambert’s Café, as possessor of the premises, knew of the “condition” and, for decades, has used the “condition” in its marketing to attract patrons.

But, in plastering “Home of Throwed Rolls” on all of its signage and advertising campaigns, has Lambert’s Café properly warned its patrons of the existing danger making its practice of throwing rolls an open and obvious condition or, even further, provided itself a defense that its patrons are assuming the risk? Stay tuned, as the Court will be forced to decide these issues in the near future.

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