In This Issue

• Slip, Trip and Fall: What Does the Open-and-Obvious Doctrine Mean in Ohio?
• Protect Your Trade Secrets: Drafting a Valid Non-Compete Clause

Slip, Trip and Fall

What Does the Open-and-Obvious Doctrine Mean in Ohio?

By Stuart W. Harris

What happens when one of your customers (in legalese, an invitee) is injured by an open-and-obvious condition at your store or business and files a lawsuit against you? Actual cases include: tripping in a hole on the sidewalk or in the parking lot, slipping on a recently mopped floor, or tripping over a shopping-cart guardrail.

Open-and-Obvious Doctrine

If a hazard is open-and-obvious, then the customer, or invitee, is expected to recognize the potential danger and to protect herself against it. Accordingly, in negligence cases, this doctrine bars the plaintiff's recovery and in many ways is a complete defense to a slip-trip-and-fall case. This legal doctrine holds that a property owner owes no duty to warn invitees to their property of open-and-obvious dangers on the premises. The foundation for this rule is the open-and-obvious nature of the dangerous situation which itself serves as a warning; the person is expected to notice and discern the precarious or risky situation and take appropriate measures to avoid the situation and to protect himself.

Armstrong vs. Best Buy Co.

In 2003, the Ohio Supreme Court provided clarification in this area in Armstrong vs. Best Buy Company. The Supreme Court, speaking through Justice Francis Sweeney, reaffirmed the viability of the open-and-obvious doctrine in Ohio. After tripping over the bracket of a shopping-cart guardrail, the plaintiff filed a lawsuit against Best Buy for negligence. In a 5-1 decision, the Ohio Supreme Court explained that "where a danger is open-and-obvious, a premises-owner owes no duty of care to individuals lawfully on the premises." In strengthening this doctrine, the Court indicated that the open-and-obvious nature of the hazard itself serves as a warning. "Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves."

The Ohio Supreme Court reaffirmed an important doctrine in the area of premises liability - a strong and effective shield against the onslaught of slip-trip-and-fall cases filed against homeowners and business owners alike. The issue is whether the appellate and trial courts paid any attention to the Ohio Supreme Court in decisions reviewed in 2004. The answer is some have, and some have not.

Potholes, Mopped Floors and Snow

For example, compare and contrast the following appellate court cases involving sidewalks. In Collins v. McDonald's Corporation, the court evaluated the negligence lawsuit filed by a man who was leaving McDonald's while holding a cup of coffee and holding a door for two women. Simultaneously, the man tripped on a hole in the sidewalk fracturing his foot and injuring his head in the fall. In Collins, the court held that where the open-and-obvious nature of the hazard itself serves as a warning, the owner may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. However, the court also found that whether something is open-and-obvious cannot always be resolved as a matter of law. The court determined that the plaintiff may have had his view obstructed by other people and that the plaintiff should not be "required to constantly look downward in order to avoid any potential dangers that may lie on or near the ground."

In Loyer, et al. v. McDonald's Family Restaurant, Inc., the court reviewed a similar factual scenario where the plaintiff "was walking toward the entrance at McDonald's to get breakfast" when he stepped up from the parking lot pavement onto the sidewalk and fell, striking his head and face and losing consciousness. The plaintiff "was found by an employee of McDonald's lying on the sidewalk and was taken to the hospital." The plaintiff reported having "no memory of the fall beyond stepping up onto the sidewalk," and the restaurant owner admitted that "a few of the pavers bricks were broken on the sidewalk and that they were aware of the condition." Id. The court concluded that because the pavers were visible that the hazard was open-and-obvious.

What about freshly mopped floors? The main issue in these cases is the necessity of placing a sign warning of a wet floor, and several appellate cases have turned on this issue. In one case illustrating this concept, the plaintiff slipped on a recently mopped floor and prevailed in a negligence claim. During the plaintiff's testimony in this case, he recalled the manager asking the employee--"Where is the wet floor sign?"

What about ice and snow? The main issue in these cases is whether the removal of the snow was negligent or whether the removal of the snow increased the normal risks associated with the natural accumulation of ice and snow during the winter months. Typically, plowing, shoveling and salting will not result in a substantially more dangerous condition beyond reasonable expectations. Sometimes, the allegations asserted by the plaintiff are considered in light of the plaintiff's exposure to winter weather i.e. "having lived through 20 Cleveland winters..." makes most winter hazards open-and-obvious.

Although the Ohio Supreme Court in Paschal v. Rite Aid Pharmacy, Inc. held that a "business owner is not an insurer of the customer's safety," it makes abundant sense to take the necessary precautions to keep the premises safe. Sometimes that means making sure that a potential hazard is open-and-obvious. Keep customers advised by clearly marking areas that could be hazardous by using markers, safety cones, and safety barriers. Being proactive in protecting your customers is better that litigating whether an accident was caused by an open-and-obvious hazard.

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Protect Your Trade Secrets

Drafting a Valid Non-Compete Clause

By Camille A. Miller

Could your competitors obtain trade secrets from your former employees? Simply because you include a non-compete clause in your standard employment contract does not necessarily mean that the courts will enforce it. All too often employers are shocked to learn that their contracts will not be enforced by the court. As a practical matter former employees could disclose your trade secrets, use your client lists, and otherwise profit from the inside information they acquired at their former job. For these reasons it is essential to protect your business by drafting a valid non-compete clause.

Drafting a Valid Non-Compete Clause

When drafting your business' non-compete clause it is important to bear in mind the following three requirements of a valid restraint. The restraint must not:

(1) Exceed the scope of what is required to protect the employer;

(2) Impose undo hardship on the employee; or

(3) Injure the public.

The central question for the court for courts is whether the non-compete clause is reasonable. Although the standard of reasonableness varies according to each employment relationship, there are several factors that will likely guide the court's determination of whether your business' non-compete clause is reasonable and therefore enforceable.

Reasonableness Factors

• How extensive are the geographical or temporal restrictions on the employee?
• Does the employee possess confidential information or trade secrets?
• Does the employee have sole contact with the customers?
• Does the non-compete clause seek to eliminate ordinary competition?
• Is the benefit to the employer disproportional to the detriment of the employee?
• Does the employer intend to stifle the inherent skill and experience of the employee?
• Does the non-compete clause bar the employee's sole means of support?
• Was the talent which the employer seeks to suppress actually developed during the period of employment?

What It All Means

In general, courts are likely to enforce a reasonable non-compete clause when the employee: (1) possesses trade secrets or inside information; (2) has sole interaction with customers; and/or (3) possesses highly specialized skills. However, far-reaching geographical restrictions on an employee's ability to find similar work are unlikely to be enforced. Likewise, lengthy time restrictions on an employee's ability to find similar employment are unlikely to be enforced. In addition, non-compete clauses that seek to restrain ordinary competition, or that prevent an employee from financially supporting him or herself, are not enforceable. Therefore, in drafting your own business' non-compete clause make certain that your restrictions are reasonably necessary to protect trade secrets, and do not overly burden an employee's ability to find comparable employment.

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