Spring 2019

Uneven Sidewalk is an Open and Obvious Condition

In Duncan-Bogley v. United States of America, 2018 WL 6435904 (D. Md. 2018), the United States District Court for the District of Maryland held that an uneven sidewalk in front of the United States Post Office did not pose an unreasonable risk of injury and that it was an open and obvious condition.

In Duncan-Bogley, the plaintiff filed suit against the United States Postal Service and SDC New Ridge Parkway (“SDC”) after falling on a sidewalk in front of the post office. The court analyzed existing Maryland case law regarding the duty imposed on owners, tenants, and occupiers of land. An owner has a duty to use reasonable and ordinary care to keep the premises safe for an invitee, but there is no duty to warn of an open or obvious danger. The plaintiff argued that a 0.75-inch height differential between the concrete slabs in front of the post office created an unreasonable risk of injury. In support of her argument, an expert testified regarding national standards and model codes for sidewalks. The court, noting that it was a sunny day when the plaintiff fell, and there were no obstructions around the uneven sidewalk, held that the .75-inch height differential “is the kind of minor defect for which courts have refused to hold property owners liable.”

The court then went on to hold that even if the uneven sidewalk was an unreasonably dangerous condition, it was nevertheless an open and obvious condition. Citing case law that it is common knowledge that there are uneven defects in sidewalks, the court held that, as a matter of law, a reasonable person in the plaintiff’s position exercising ordinary perception would have recognized the condition of the sidewalk.

Duncan-Bogley reinforces a duty on individuals to exercise due care for their own safety, which now expressly includes a duty to exercise care when walking on public sidewalks. The court’s decision excluded any potential factual circumstances where an obstruction prevented a person from seeing an uneven sidewalk, but it nonetheless places the duty on the plaintiff rather than a landowner for minor sidewalk defects.

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