VIRGINIA: Shelf And Nearby Ladder Were Open And Obvious

In the November 2010 case of Zankow v. Sears Holding Corp., Judge T. S. Ellis, III of the United States District Court for the Eastern District of Virginia held that a Plaintiff injured in a store when she hit her head on a store shelf was barred from recovery against the store by the Plaintiff’s own contributory negligence.  The Plaintiff tried to characterize the shelf as protruding, but the Court found that the shelf protruded no more than any other shelf did.  The Plaintiff likewise tried to characterize the shelf as a hazard which was not open and obvious, but the Court rejected that contention because the shelf was an inch thick and was opaque.  On this basis, the Court held that the shelf, despite the presence of a nearby stepladder upon which the Plaintiff’s attention was focused, was an open and obvious condition, and that the Plaintiff was therefore barred from recovery.  The Court added that an additional ground for barring the Plaintiff’s claim was that the Plaintiff was contributorily negligent in hurting herself on the open and obvious shelf.