Concrete parking stop isn't 'open and obvious'

By Pat Murphy

The Daily Record Newswire

You'd think that you could leave it to shoppers to keep from tripping over those concrete barriers that so frequently populate our parking lots. But a federal judge in Kentucky just ruled that something about as common and visible as a dandelion cannot be considered an "open and obvious" hazard.

The Target store in Elizabethtown, Kentucky, wants to keep cars in the adjoining parking lots from striking the sides of its building. That sounds reasonable enough.

To prevent this problem, the store installed concrete parking barriers -- also called parking stops or parking bumpers -- at the end of the parking spaces alongside the store to ensure an open space between parked cars and the building.

Perhaps to save money, instead of having a parking bumper for each space, Target set it up so that every pair of parking spaces shares a single barrier that extends halfway across each space.

According to U.S. District Judge Thomas B. Russell, this simple cost-saving measure may wind up costing the retail chain big bucks in the form of personal injury claims.

The problem for Target was illustrated by the mishap suffered by shopper Mary Edwards on Feb. 27, 2010. Mary and her husband, Lew, drove from their home in Greensburg to Elizabethtown to shop and run errands. At around 4 p.m., the couple arrived at the Elizabethtown Target. Lew was driving and parked in the store's south lot in the third or fourth space in the row abutting the store.

When Mary exited the vehicle to go shopping, she went toward the traffic lane in the parking lot, so she didn't encounter the concrete parking stops.

However, after shopping, Mary returned by walking the path between the building and the parked cars. And Mary had her hands full. In addition to her shoulder bag, Mary had her shopping bag and a bag of popcorn.

As chance would have it, her path was blocked by a shopping cart. So Mary turned to walk between the first and second cars parked alongside the building. Mary claims that she didn't see the parking barrier at her feet and tripped over it. Mary suffered a broken right hip in the fall.

Mary sued Target under Kentucky premises liability law, alleging that the retail store negligently failed to protect her from a dangerous condition on the property.

Target countered by making the not so unreasonable argument that the danger posed by a concrete parking stop on a blacktop surface was an open and obvious hazard.

But Judge Russell just couldn't get it out of his head that there was a basic problem with the way Target had positioned the parking barriers at the ends of the parking spaces.

Photographs entered into the record show that the parking barrier at issue is gray and distinguishable from the blacktopped parking lot it sits on. This alone is not enough to make the condition created by the barrier obvious, however, because its unique positioning concealed the risk created by it. It is undisputed that the parking barrier at issue straddles the first two spaces. At the time of Mrs. Edwards's fall, cars occupied the first and second parking spaces, partially or entirely concealing the barrier. A reasonable person in Mrs. Edwards's position would not look for or recognize a raised obstruction in the path between two parking spaces because this space is commonly used for ingress and egress from vehicles and is expected to be clear of obstructions.

Moreover, the judge provided an alternative ground for denying Target's motion for summary judgment. He concluded that, even if the danger was open and obvious, Target had a duty to protect because the customer's injuries were foreseeable.

"In the present case the evidence shows that Mrs. Edwards left the store carrying her shoulder bag, a bag of purchased items, and a bag of popcorn. Even if the parking barrier over which she tripped and fell was open and obvious, .... it was foreseeable to Target under the circumstances that she would be distracted from and not observe the danger," the judge wrote.

So, barring settlement, Mary will get her chance to make her case to a jury. It will be interesting to see if a jury of her peers agrees that a six-foot slab of concrete isn't open and obvious.

Published: Wed, Apr 25, 2012

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