In a premises liability claim, the plaintiff alleges that they were hurt on the defendant’s property and due to the defendant’s negligence. Typically, a welcome guest, visitor, customer, or client is the plaintiff and the property owner or control is the defendant. For example, slip-and-fall accident claims filed by customers against retail store companies remain some of the more common types of premises liability cases.
Given that a visitor to someone else’s property has no way to control the conditions of that property, a premises liability claim might seem fairly straightforward. However, the case can become quickly contested if the defendant claims that the hazard that caused the accident and injury was “open and obvious.” What exactly does that mean, though?
Explaining the Open & Obvious Defense
When a hazard is easy to notice and presents a clear danger, it can be argued as being “[in the] open and obvious” to anyone on the property. Many states recognize the open and obvious rule as a valid argument that can be used in defense of liability. In other words, the defendant can argue that the plaintiff should have been able to avoid their accident without any warning from the property owner, no matter how dangerous the hazard or how extensive their injuries.
Open & Obvious Example
Imagine that you are helping your friend renovate their home. While working, your friend breaks a water line under the kitchen sink, which begins to flood the room with water. You witness the break occur and go to help your friend get towels to soak up the water. When you return with towels in hand, you enter the kitchen, step on the wet tile, slip, and get hurt.
In this situation, your friend caused the spill and you are in their home. You might expect that you should be given full compensation for your injuries under normal premises liability rules. However, since you were aware of the hazard before your accident and still willingly approached it, your friend could probably use the open and obvious defense to escape any liability for your injuries and resulting damages.
Does the Open & Obvious Rule Always Apply?
In the past, courts have decidedly challenged and rejected the open and obvious defense when the property owner had behaved overtly negligent about an “open and obvious” hazard. For example, imagine that your friend has had a plumbing leak in their kitchen for months, and it routinely causes water to pool on the tile floor. You know about the hazard but still visit them often for recreation. One day, you go into the kitchen and slip on the puddle, resulting in a bad fall injury. The court could reject the open and obvious defense on the grounds that your friend had ample time to correct the situation but never did, essentially putting you in harm’s way out of their negligence.
Do you need help managing a premises liability claim as a plaintiff in Atlanta? Pratt Clay, LLC can help. We can work around or directly challenge “open and obvious” defenses in a variety of premises liability cases by using our decades of collective legal experience. Throughout the years, our tactics have secured more than $100 million in settlements and verdicts on behalf of injured clients. See if we can help you pursue a similar result, too, by dialing 404-566-9460 .