What Is the 'Open and Obvious' Defense?

Whether you rent an apartment, own an office building, or run a store, you could be held responsible for injuries that occur on your property. Or perhaps you were a visitor to someone else’s property, and were injured because of a dangerous condition. Either way, it’s helpful to have an understanding of premises liability and its exceptions, such as the open and obvious defense. Read on to learn how these concepts could affect you as a landowner, renter, or visitor.

Premises Liability: The Landowner’s Responsibility

Every landowner and resident owes a duty to protect others from an unreasonable risk of harm caused by dangerous conditions on their property. If they fail to do so, they could be liable for any accidents and injuries that occur. This is known as premises liability.

The laws of each state vary with regard to the exact responsibilities a landowner or resident might have. Some require that the landowner or resident exercise reasonable care for the safety of the visitor. Others give specific standards of care based on the type of people who visit their property, such as invitees or trespassers. For example, a statute might specify that landowners have a duty to protect invitees from unreasonably dangerous conditions.

The American Law Institute has its own guidelines that many states and courts look to in formulating and interpreting premise liability law. These guidelines specify that a possessor of land is liable for harm caused by a condition on the land if he or she:

  • Knows about, or through reasonable care would discover the condition, and should realize that it presents an unreasonable risk of harm;
  • Should expect that invitees won’t discover the danger, or will fail to protect themselves against it; and
  • Fails to exercise reasonable care to protect the invitees from the danger

The Open and Obvious Defense: Relieving the Landowner of Liability

In most states, the open and obvious doctrine serves as an exception to the general rule of premises liability. The rule states that if the hazard or condition would have been open and obvious to a reasonable person, then the landowner is not liable (or may be less liable) for failing to fix the condition or warn the person who was injured. The idea is that a visitor should recognize the warning signs of such obvious dangers and protect himself or herself from harm. States will often use a standard such as whether an average person would have been able to discover the danger and risk upon casual inspection.

Exceptions to the Open and Obvious Defense

Sometimes, even if a hazard is open and obvious, the landowner is not relieved of liability and must still take reasonable precautions to protect others from the risk of harm. One exception to the open and obvious rule is when the landowner or resident should expect that people would be harmed despite the knowledge or obviousness of the danger. In this instance, they still have a responsibility to protect others against that harm, either by fixing the hazardous condition or providing adequate warnings.

For example, if the landowner should expect that a person would be too distracted to discover the obvious danger, or would forget what he or she discovered, then they still have a duty to take reasonable precautions in protecting others. Here, the fact that the danger was open and obvious might not relieve the landowner of liability for injuries that occur.

Another exception that states might allow to the open and obvious rule is that of negligence per se. This exception usually involves a violation of a health or safety statute, such that the landowner’s violation makes him automatically negligent regardless of the actions or awareness of the injured party.

Caught Up in a Premise Liability Action? Get Help with Your Case

As a landowner or resident, it can be difficult to know what all of your responsibilities are with regard to those who come onto your property. What types of guests must you protect, and which hazards are considered unreasonably dangerous? The lawsuit from one injured visitor could cost you if you’re not prepared with an adequate defense. Contact an experienced attorney familiar with your state’s premises liability laws, including the open and obvious defense.

Next Steps

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