Foster v. Costco, 128 Nev. Adv. Op. 71 (2013)
Jan 01, 2013OUTCOME: Ruled in favor of the Plaintiff and remanded to the District Court for a trial on the case merits. Plaintiff won the case at Trial.
In this case the Nevada Supreme Court revisited the contentious subject of open and obvious conditions because an increasing number of Nevada District Court judges were entertaining defense motions for ... summary judgment on this issue. The Supreme Court ruled in favor of Plaintiff Foster, hopefully putting an end to this trend. In October 2005, Plaintiff visited a Costco store in Henderson, Nevada. While walking down an aisle, Foster’s toe caught the corner of a wood pallet, which was covered by a slightly turned box. Foster fell and was injured. He sued Costco and maintained that Costco owed him a duty to maintain an establishment free of dangerous conditions, including exposed pallets in aisles. After Foster’s deposition Costco filed a motion for summary judgment, contending that the pallet was an open and obvious hazard, which the District Court granted. The Court concluded that Costco was not free from liability under Nevada law solely because the danger of the pallet in its aisle may have been open and obvious to Foster. A jury could reasonably believe that Foster walked down the paper goods aisle without observing the corner of the subject pallet because it was obscured. Even if a jury found the risk to be open and obvious, it must also decide whether Costco nevertheless breached its duty of care to Foster by allowing the conditions to exist and by permitting Foster to encounter those existing conditions. If so, the jury must further determine whether Foster was partially at fault. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner and does not automatically defeat a landowner’s duty.
