When someone slips, trips, or falls on another person’s property, the first thought is often whether the property owner can be held legally responsible. In many situations, the answer depends on the concept of premises liability—the legal responsibility that property owners and occupiers have to keep their premises reasonably safe for visitors.
But what if the dangerous condition was “open and obvious”? Imagine a large pothole in a store parking lot, a clearly visible patch of ice on a sidewalk, or a bright yellow caution sign near a wet floor. These hazards are noticeable to the average person, so property owners often argue that they should not be held liable for accidents that result.
The question is: does the “open and obvious” doctrine prevent injured individuals from filing a premises liability claim? The answer is more complicated than a simple yes or no. We explores how courts approach these cases, how liability may still be found, and why working with a premises liability lawyer can make the difference in recovering compensation in the blog article below.
What Does “Open and Obvious Hazard” Mean?
An open and obvious hazard is any dangerous condition that an average, reasonable person could have seen and avoided through ordinary care. Courts developed this standard to prevent individuals from ignoring their own responsibility to watch out for dangers that should be apparent.
Examples include:
- A broken step that is visibly cracked and uneven
- A brightly painted curb or raised surface
- An uncovered hole marked by a cone
- Large debris clearly blocking a walkway
Property owners often argue that if a danger is open and obvious, they have no duty to warn visitors, and therefore they cannot be held responsible for accidents.
The Property Owner’s Duty of Care
While the “open and obvious” rule can be a strong defense, it does not completely eliminate a property owner’s responsibility. The basic principle of premises liability law is that property owners owe a duty of care to people lawfully on their property. That duty generally includes:
- Maintaining the property in reasonably safe condition
- Repairing or removing hazards within a reasonable time
- Providing adequate warnings when hazards exist
Even if a hazard is visible, the property owner might still have a duty to correct it if the risk of harm is significant. For example, a store cannot leave large, obvious spills on the floor indefinitely just because customers “should” see them.
Can You Still File a Premises Liability Lawsuit?
Yes—injured individuals can often still pursue a premises liability lawsuit, even if the hazard was open and obvious. Courts look at the bigger picture when evaluating whether the property owner should still be held liable. Factors that may influence the outcome include:
Foreseeability of Harm
If it was foreseeable that someone could still get hurt, even with the hazard being visible, a court may still find the property owner responsible. For instance, an icy sidewalk may be obvious, but if a landlord fails to salt or shovel it during winter, tenants may still be at risk.
Reasonableness of the Owner’s Actions
The court may examine whether the owner acted reasonably under the circumstances. Did they take steps to fix the hazard? Did they post warnings? Or did they ignore the condition altogether?
The Nature of the Hazard
Some hazards are so inherently dangerous that simply being “obvious” does not excuse the property owner. For example, an open hole in a public park may be visible, but it still presents a serious risk of injury that reasonable safety measures could have prevented.
Comparative Negligence in Premises Liability Cases
In many states, courts use comparative negligence rules to assign responsibility between the injured person and the property owner. Under this framework, an injured party’s compensation may be reduced if they are found partially at fault for failing to avoid an open and obvious hazard.
For example:
- If the court finds the injured person 30% at fault for not paying attention, and the property owner 70% at fault for failing to address the hazard, the injured person may still recover damages—just reduced by their share of fault.
This shows why “open and obvious” is not always a complete defense. It simply shifts some of the responsibility to the injured party.
Situations Where “Open and Obvious” Does Not Apply
There are important exceptions where the open and obvious doctrine may not apply, including:
Children and Vulnerable Individuals
Property owners may have a higher duty of care when children or vulnerable adults are present. A hazard that may be obvious to an adult may not be recognized by a child, meaning liability can still exist.
Distractions or Circumstances Beyond Control
If circumstances make it unreasonable to expect someone to notice the hazard, the open and obvious defense weakens. For example, in a dimly lit parking garage, a person may not see a pothole even though it would be visible in daylight.
Hazards That Cannot Be Avoided
If avoiding the hazard is impossible without undue burden, the defense may not apply. For example, if the only way into a building requires crossing an icy patch, the property owner may still be liable if they failed to treat the area.
Proving a Premises Liability Claim
To successfully pursue a premises liability claim, an injured person and their attorney must generally show:
- The property owner had a duty of care.
- The owner breached that duty by failing to maintain safe conditions.
- The hazardous condition caused the accident.
- The victim suffered actual damages (such as medical bills, lost wages, or pain and suffering).
Even in cases involving open and obvious hazards, these elements can often be established with the help of a skilled premises liability attorney.
Why Hiring a Premises Liability Lawyer Matters
Premises liability cases are rarely straightforward. Property owners, their insurers, and their attorneys often argue that the injured party should have seen the hazard and avoided it. Without proper legal representation, an injured person may find it difficult to prove their case or recover fair compensation.
A knowledgeable premises liability lawyer can:
- Investigate the scene and gather evidence
- Interview witnesses and review surveillance footage
- Demonstrate why the hazard still posed an unreasonable risk
- Counter arguments about comparative negligence
- Negotiate with insurance companies for fair settlements
Call Brandon J. Broderick For Legal Help
If you or a loved one has been injured because of a dangerous condition on someone else’s property, do not assume that the “open and obvious” doctrine prevents you from filing a claim. Every case is unique, and the circumstances matter.
At Brandon J. Broderick, Attorney at Law, our team has years of experience representing injured clients in complex premises liability lawsuits. We understand how property owners and insurers defend these cases, and we know how to fight back to protect your rights.
Contact us today for a free consultation. Let us help you explore your options.