A state appellate court reversed and remanded a wrongful death lawsuit to Boone County, which had dismissed the complaint of a father who lost his daughter and grandchild in a tragic road accident involving flooding.
The Missouri Court of Appeals for the Western District ruled in favor of the plaintiff in Michael Lee v. Missouri Department of Transportation, which named the Missouri Highway and Transportation Commission (MHTC) as a defendant.
“The court was saying that it's at least possible that a reasonable plaintiff may not have surmised that there was obvious danger in pursuing the path that the plaintiff’s family member chose,” said David Eisenberg, a Kansas City attorney and editor of the Missouri Law Blog.
The mother, who was not able to navigate a flooded area while driving on a road, died while proceeding through the water, according to media reports, and her child drowned with her.
“What it says in the eyes of the appellate court is that open and obvious is a very fact-laden question, which may be a tough call to make on a motion to dismiss,” Eisenberg told the St. Louis Record. “If you think you have a good open and obvious defense then get some of your facts together in depositions and affidavits, or make those arguments in a summary judgment motion with the facts more fully developed because it may be difficult to win a motion to dismiss based on the open and obvious concept.”
The Missouri Law Review defines the open and obvious doctrine as holding parties accountable if it’s reasonable to expect that they could have foreseen danger was blatant.
“The main point of the case is much more mundane, which is that a motion to dismiss is a limited tool for defendants because it just tests the sufficiency of the plaintiff's petition,” Eisenberg said. “If there were potentially facts that could ultimately sustain the claim, the defendant may have to wait until it's taken some discovery and file a summary judgment motion, or perhaps if the facts are somewhat blurry, wait for trial and then let a jury decide what may have been open and obvious to the plaintiff.”
The Missouri Law Blog reported that Lee’s daughter had stopped to evaluate the road before unsuccessfully proceeding and that Lee accused the MHTC of failing to install guard rails, which would have allegedly prevented a car from being whisked into the water.
“Presumably there'll be good counsel on both sides of the case making their best points as to whether the plaintiff went into harm's way in a completely unreasonable manner, or whether there are in fact other issues that lay all or a significant part of the blame at the defendant's feet,” Eisenberg added.
In previous case law, defendants prevailed on open and obvious but it's typically on a more developed record than in Lee v MHTC case, according to Eisenberg.
“Defense lawyers may think twice now before trying to dispose of a case on a motion to dismiss and instead wait to develop the actual record more and then do a motion for summary judgment if you have a good solid defense and a basis for doing so,” he said.