Obviously, Anderson does not appear to have a direct role in the accident since he left the matter to construction people. He was probably a bit surprised to be sued by an interior designer who was visiting a construction site of a firehouse and fell through the prominent ladder hole.
The pole had been removed from the 1906 firehouse. O’Brien is also suing the developer for leaving the open hole.
The fact is that the hole — even on a construction site — should have been covered and this may be a case of negligence per se if the construction regs require such covers (as they probably do). That would allow O’Brien to go directly to causation — both factual (no problem there) and legal causation.
The danger here was open and obvious. However, the “open and obvious” defense is no longer a complete defense in tort. Moreover, if such covers are required, O’Brien did not assume the risk by going to the site as part of a plaintiff’s conduct defense. Anderson cannot argue that everyone is expected to have a “360” view when visiting his home.
If she saw the hole, it could present a novel question. She is a business invitee on the site and entitled to both a warning and reasonable efforts to make hidden or latent defects safe. However, there remains the construction code and the possible per se negligence problem of Anderson.
One defense is that the ladder hole does not have to be covered if it was being actively worked on or if it was uncovered to show people like a visiting interior designer. Yet, industry custom defenses have long been rejected in such cases. In Mayhew v. Sullivan Mining Co., the plaintiff fell through a hole cut in the platform for ladders and buckets. It was not covered and the worker was given no warning, but the company argued that such holes are customary in mines. The court rejected the defense.
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