Moot Waiver and “Open and Obvious” Issue

By Doyice Cotten

Ecuador (709)This Ohio case involved a slip and fall in a puddle of water when Marie Daher was leaving the swimming pool area going down a hallway to the shower area. She sued Bally’s based on premises liability; she alleged Bally’s was negligent in maintaining its premises (Daher v. Bally’s Total Fitness, 2015). Bally’s claimed that the hazard was open and obvious and that plaintiff had waived liability for negligence.

Appellant had used the facility hundreds of times for the past eight years. The club had had complaints about water occasionally in the past, but had no complaints on that day. There were no handrails. The area was well lit with no obstructions to vision. Employees dry mop the locker room floor throughout the day.

Open & Obvious

Plaintiff alleged error by the trial court in ruling the hazard was “open and obvious,” arguing that there was no alternate route and that there was a genuine issue of fact as to whether the hazard was “open and obvious.”

The court discussed Ohio premises liability law:

  • Business owners owe business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition.
  • The business owner has a duty to keep their premises in a reasonably safe condition and to warn invitees about any hidden dangers of which he had or should have had knowledge.
  • The mere fact that a party slipped and fell, of itself, is insufficientto create an inference that premises are unsafe or to establish negligence. There must be evidence that a negligent act or omission caused the slip and fall.
  • Negligence cannot be presumed and cannot be inferred from the mere fact that an accident occurred.
  • The business owner’s duty of reasonable care ceases to exist where dangers or obstructions are so obvious that the invitee may reasonably be expected to discover them and protect herself against them.
  • Where a danger is obvious, an owner may reasonably expect that persons entering the premises will discover those hazards and take proper measures to protect themselves. When applicable, the open and obvious doctrine abrogates the duty to warn and completely precludes negligence claims.
  • The question of whether something is open and obvious cannot always be decided as a matter of law simply because it may have been visible. Rather, the ‘attendant circumstances’ of a slip and fall may create a material issue of fact as to whether the danger was open and obvious.

The court stated that Bally’s owed Daher a duty of ordinary care to maintain the premises in a reasonably safe condition. Bally’s, as a property owner, was not an insurer of Daher’s safety. The court added that “Under the open and obvious doctrine, it does not matter whether the invitee had a viable alternative to encountering the open and obvious danger.  Where a condition is patent or obvious, the business invitee is expected to protect himself, unless the condition is unreasonably dangerous.” The court noted that “water is inherently slippery and can create dangerous conditions that would be obvious to a reasonable person.”

Based on the facts presented, the court concluded that the wet condition of the locker room floor near the pool area was open and obvious. It pointed out that Daher admitted in her deposition that she was aware that the area became wet and slippery and that she needed to exercise care in traversing that area of the locker room. The court summarized that Bally’s did not cause the condition; had no actual knowledge of it; and did not know how long the water had been there. No club member, including Daher, had reported water on the floor. Further, the court added that although there were no handrails and/or floor mats, there is no such requirement to have these items under any statute or building code.

When viewing the evidence in a light most favorable to appellant, the court ruled that the trial court properly determined that reasonable minds could only conclude that Bally’s did not violate any duty as the wet locker room floor was “open and obvious.” Thus, the trial court properly granted Bally’s motion for summary judgment.

Waiver of Liability

To enter the club each day, Daher had to swipe her membership card which contained her name, photograph, and the following language: “Use of this card or club acknowledges agreement to comply with club rules and written membership contract, including but not limited to the waiver and release of liability from any and all claims or causes of action arising out of our negligence for personal injury or theft of property.”

Bally’s Rules and Regulations contain the following provision:

WAIVER AND RELEASE. * * * You agree that if you engage in any physical exercise, class or activity, or use any club equipment or facility on the premises, you do so at your own risk. You agree that you are voluntarily participating in activities and use of the facilities and premises (including the parking lot) and assume all risk of injury, illness, damage or loss to you or your property that might result, including, without limitation, any loss or theft of any personal property. You agree to release and discharge us (and our affiliates, employees, agents, representatives, successors and assigns) from any and all claims or causes of action (known or unknown) arising out of our negligence. You acknowledge that you have carefully read this Waiver and Release and fully understand that it is a release of liability. You are waiving any right that you may have to bring a legal action to assert a claim against us for our negligence.”

Daher denied seeing the language printed on her card and denied seeing the Rules and Regulations containing the “Waiver and Release” provision. There apparently was no signed waiver.


The court ruled that since the open and obvious issue was determinative, the waiver became moot; thus the court did not rule on the waiver. The court held that the trial court grant of summary judgment to Bally’s was proper.