As I explained earlier, I had never noticed the defect of the diving board before. I rarely visited the swimming pool and when I was there, I didn’t inspect the board or notice anything significant about it. But, I knew the first thing that the defense lawyers would try to do is get me to somehow say that the defect of the diving board was “open and obvious” to me or my wife.
Under Ohio law, the “open and obvious” doctrine states that if the defense can prove that a dangerous condition was open and obvious to anyone who came near it, there is no liability for the injury that occurs. This is a deceptive defense tactic used in many cases, so you can certainly expect for the same to be used in your case.
This was in fact the first thing the pool owners’ lawyer used to try to throw out my son’s case. The defense lawyer was saying that he believed our case was so weak that he was willing to offer my family a very small token payment to make us “go away” without filing suit. Just imagine your son spending three weeks in the hospital after falling from a board that did not comply with code and a defense lawyer is calling your case a nuisance. I obviously did not go away, and you shouldn’t either.
In civil cases, the parties take “depositions” of the other party, asking simple questions under oath. After being a part of these depositions for years, I was now in the hot seat answering the questions. The defense lawyer asked me the following question trying to establish his “open and obvious” defense, and I gave the following answer:
Q: If you looked at the diving board itself in relationship to the cement deck, you could see that the handrails on the diving board did not extend all the way to the edge of the pool?
A: I never observed that, nor considered it significant or insignificant. I can see where it’s a relevant issue now, but at the time, I had no diving expertise, nor – – I mean, it’s not something – – I may have looked at it, but I didn’t appreciate one way or the other where the rails were or where they weren’t.
The above question was clearly meant to back me into a position where he could “trick me” into saying something to give him ammo for his “open and obvious defense.” He then thought he’d do better asking my wife that question. The defense lawyer asked my wife the below question in her deposition:
Q: [T]he handrails that were attached to the diving board extend from the ladder almost to the edge of the cement pool, cement deck, but not quite. Did you understand that handrails did not extend fully from the ladder to the edge of the pool prior to Joshua’s accident?
The answers that my wife and I gave to these questions shut down the open and obvious argument, at least as far as our testimony was concerned.
Our strategy was to turn the defendants’ own argument around on them. They claimed the lack of handrails was open and obvious yet the owners also said in their depositions that even they had never noticed the hazard. If the owner did not notice the hazard, how could it be open and obvious? The owner admitted that he had never seen the open area on the diving board that would allow someone to fall onto the cement below.
We then argued that if is a hazard was never noticed by the longtime owner, how could it be open and obvious to me, my wife, or Joshua? The judge never ruled on either argument because we settled the case, but I believe that the defense realized that we were right, and this was the reason they eventually agreed to an out-of-court resolution.
The above deposition argument is another reason why you need a lawyer immediately after an accident. Negligent victims often do not understand the critical importance of certain questions that they will be asked by insurance companies and claims adjusters.
Insurance adjusters ask these questions for a living and a non-lawyer victim could be tricked into making a statement that would destroy their case. It is important to have a lawyer to go through the process from the beginning and ensure a fair and just outcome.
Lesson to be learned: You need to be prepared for the tough questions that will be asked by insurance adjusters and defense lawyers during recorded statements or depositions.
If you do not have legal training or experience to know the legal pitfalls, you could be backed up into a legal trap pretty quickly. Pick up the phone and call a lawyer. As the case progresses, you will be glad you did. I know I was.