Another dispute over "open and obvious"
In Robertson v. Mike's Used Cars, the Plaintiff filed suit after she allegedly fell on black ice in the Defendant's car lot. She claimed that she had asked one of the Defendant's employees if she could check the odometer on a vehicle she was interested in, and she claimed that the employee had encouraged her to do so. The employee disputed this claim and testified that he had told the Plaintiff she could not inspect the vehicle because he hadn't finished cleaning the slippery lot and spreading salt.
The majority of the Court of Appeals held that the used car lot owed the injured woman no duty to make its premises safe, because the ice that caused her injury was "open and obvious". The dissenting judge disagreed with this conclusion and would have held that , given the widely-divergent testimony, there was a question of fact to be determined by the jury. The dissenting judge noted that if the jury accepted the Plaintiff's account of the incident, the employee owed her the duty to caution her about the icy conditions, since he was aware of the potential hazard and should have recognized that the Plaintiff might not observe the "black ice".