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Open and Obvious

February 16, 2021

In Six Flags America, LP v. Stephanie Gonzalez-Perdomo, a minor invitee was injured after falling on a pedestrian bridge at an amusement park. 2020 Md. App. LEXIS 1178 (2020). The bridge was openly and obviously wet and was near a water ride. The issue before the court of Special Appeals was the trial court’s denial of Defendant’s Motion for Summary Judgment and failure to propound non-pattern jury instructions on an “open and obvious” condition.

The trial court agreed to read the pattern jury instruction regarding the duty to an invitee owed by a possessor of land. See Maryland Civil Pattern Jury Instructions – Civil(“MPJI-Cv”) 24:3 (2019) (“The duty owed to an invitee is to use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.”) Additionally, the Defendant requested the court propound four non-pattern jury instructions on “open and obvious,” based on Maryland case law, which the trial court declined to do.

On appeal the court found that the pattern instruction is incomplete Pursuant to Casper v. Charles F. Smith & Son, Inc., and Tennant v. Shoppers Food Warehouse Md. Corp., a possessor of land has the duty to protect an invitee from injury caused by an unreasonable risk that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care. 316 Md. 573, 582 (1989); 115 Md. App. 381, 389 (1997). The court noted that it would recommend that the Standing Committee on Pattern Jury Instructions of the Maryland State Bar Association to address this lack of clarity in MPJI-Cv 24:3.

The court affirmed the lower court’s ruling which denied Defendant’s Motion for Summary Judgment on the grounds that the determination of whether the slippery condition of the bridge constituted an open and obvious danger was not a question of law for the court.