What Is the Open and Obvious Defense?

Whether you rent an apartment, own an office building, or run a store, the law could hold you accountable for injuries on your property. Premises liability is a subsection of personal injury cases. Perhaps you were a visitor to someone else's property and had a fall accident because of a dangerous condition. It's helpful to understand premises liability and its exceptions, such as the open and obvious defense. Learn how these concepts could affect you as a property owner, renter, or visitor.

Premises Liability: The Landowner's Responsibility

Every landowner and resident must protect parties from an unreasonable risk of harm caused by dangerous conditions on their property. If they fail, they could be liable for any injuries or accidents on their property. This is known as premises liability. If a person is injured by a dog bite or falls in a parking lot, they may have a valid premises liability claim.

Each state's laws vary regarding the legal duty a landowner or resident might have. Some require the landowner or resident to exercise reasonable care for the visitors' safety. This is a general duty of care to provide safe conditions on the land. 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 must protect invitees from unreasonably dangerous conditions.

State premise liability law varies, but there are common guidelines. These guidelines specify that a possessor of land is liable for injury caused by a condition on the land if they:

• Know or should have known about the condition that creates unreasonable risks of harm
• Assume that visitors will not find the risk or they will fail to protect themselves against the risk
• Do not exercise reasonable care to protect the guests from the dangerous condition

The Open and Obvious Defense: Relieving the Landowner of Liability

In most states, the open and obvious doctrine is an exception to the general rule of premises liability. The law states that if the hazard or condition would have been open and obvious to a reasonable person then the landowner is not liable for failing to fix the condition or warn the injured person. The idea is that visitors should recognize the warning signs of such obvious conditions and protect themselves from harm. States will often use a standard such as whether an average person would have been able to find the threat and risk upon casual inspection.

When Does Comparative Negligence Apply to Premises Liability Claims?

If you're harmed by dangerous conditions on another's property, you may get damages. The court might limit the amount of your recovery, depending on the circumstances if you live in a comparative fault state. Suppose you live in Miami, Florida and you're injured on another's property. You have a valid personal injury claim, but the jury finds that you're 30% at fault. The court will reduce your damages by 30%.

Exceptions to the Open and Obvious Defense

Sometimes, even if a hazard is open and obvious, the landowner is not relieved of liability. They 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 can get hurt. The property owner expects this despite the knowledge of the danger or that there is an obvious hazard. In this instance, they are still responsible for protecting others in one of two ways:

• Fixing the hazardous condition
• Providing adequate warnings

For example, the landowner expects that a person would be too distracted to discover the obvious danger, or that the person would need to remember what they discovered. In that case, landowners still have 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 states might allow to the open and obvious rule is negligence per se. This exception usually involves a violation of a health or safety statute and is such that the landowner's offense makes them automatically negligent. Regardless of the injured party's awareness or their actions, the landowner is negligent.

Caught up in a Premise Liability Action? Get Help With Your Case

As a landowner or resident, it can be challenging to know all your responsibilities regarding those who come onto your property. What types of guests must you protect, and which hazards are considered unreasonably dangerous? The premises liability case from one injured visitor could cost you if you need to prepare an adequate defense. Contact an experienced personal injury lawyer. An experienced attorney is familiar with your state's premises liability laws, including the open and obvious defense.