Since 2016, McCook Hotel Group has operated a hotel in McCook, Nebraska. Ron Strahan stayed in this hotel in January 2019 while on business travel. One morning, while showering, he slipped and fell, sustaining injuries to his head, ribs, and wrist. He then filed a complaint in the District Court of Red Willow County alleging the bathtub was not equipped with slip-resistant materials and ‘the hotel either created the condition, knew of the condition, or, in the exercise of reasonable care, should have discovered the condition’ (317 Neb. 350). McCook generally denied any negligence and described its bathtubs as meeting the industry standard with a similar design to any other average hotel bathtub.
Approximately two years later, McCook Hotel Group moved for summary judgment. In opposition to the hotel’s motion, Strahan offered photographic evidence of the hotel bathtub in his room, multiple affidavits from himself and his friend, and an expert inspection of the tub. Strahan’s primary contention to the court was that McCook Hotel Group was negligent in creating or maintaining the hazard of a slippery bathtub. His evidence, however, was not enough to genuinely dispute whether the bathtub was unreasonably dangerous by being too slippery. This resulted despite Strahan offering an expert inspection of the tub. In the expert’s affidavit/report, he clearly stated the bathtub had a “raised truncated type slip resistant surface that is part of [its] construction” (317 Neb. 350). He also stated that the resistance felt similar in both dry and wet conditions (317 Neb. 350). The expert’s examination contradicted Strahan’s claims, highlighting to the District Court the speculative nature of Strahan’s claims. Considering that, the District Court applied the open doctrine to Strahan’s claims. The open and obvious doctrine frees the possessor of land from liability if the danger is something that an average person is expected to notice and avoid. Because the District Court applied the open and obvious doctrine, and since Strahan’s argument for the condition of the bathtub floor was based on speculation, the District Court granted summary judgment in favor of the hotel. If Strahan could have proven at least one of the elements of negligence, the District Court would not have been able to grant summary judgment. But he failed to do so.
With a timely appeal filed by Strahan, the Nebraska Supreme Court considered the grant of summary judgment. In such a review, a Nebraska appellate court will review the lower court’s decision “de novo,” meaning it will view the case and its information in a way most favorable to the nonmoving party, here the plaintiff Strahan. The Supreme Court
found no error in the District Court’s conclusion about the bathtub floor conditions. The Court more thoroughly examined the District Court’s application of the open and obvious doctrine. Part of Strahan’s appeal had claimed there was a genuine material dispute on the Court’s application of the open and obvious doctrine. For something to qualify as “open and obvious,” the initial assumption is that there exists a dangerous condition. In the case of a bathtub floor, the appellate court considered whether it was genuinely dangerous to take a shower.
As part of this analysis, the Court noted that in the 31 months that McCook Hotel was open and preceding Strahan’s complaint, there had been zero complaints about the bathroom, bathtubs, showers, etc. In January 2019, Strahan took a morning shower, turned around, slipped, and sustained injuries. In his appeal, he claimed that the absence of a slip-resistant bathtub is “unreasonably dangerous” and is not an “open and obvious” danger. Ultimately, though, the Supreme Court found that Strahan could not prove these claims. His evidence and affidavits provided nothing more than speculation, and “conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for the purposes of summary judgment.” (317 Neb. 350). Strahan could not show evidence that slipping in a shower—or taking a shower for that matter—supports the existence of an unreasonably dangerous condition. He could not show the shower being unreasonably slippery or having a low coefficient of friction. He could not show the shower failing to meet industry standards and regulations. He could not show any requirement for the bathtub to have a slip-resistant floor.
Thus, the Supreme Court found no error in the District Court’s grant of summary judgment in favor of McCook Hotel Group. In concluding this, the Court reviewed multiple premises liability cases, including some involving showers and bathtubs. The takeaway may be that it is difficult for claimants to win these cases, as the open and obvious doctrine will often protect against the liability of the property owners involved.
This article was prepared by ES Law Administrative Clerk John Boryca.