The Open and Obvious Defense to Premises Liability

A slip and fall accident can cause painful and sometimes permanent injury. But if you’re hoping for compensation from a property owner or business proprietor, you must prove the accident was their fault rather than yours. One of the requirements of a premises liability claim is that the hazard which causes the fall cannot be readily apparent to the victim. An “open and obvious” hazard gives the victim notice of the danger and allows the victim to choose whether to proceed in spite of the danger.

In Virginia, when a case involves an open and obvious hazard, such as a visibly damaged staircase, the judge or jury must weigh whether the victim was reasonable in deciding to encounter the hazard or a reasonable person would have taken an alternative route. If the victim was unreasonable, meaning he did not act with proper care for his own safety, the victim is guilty of contributory negligence. This means the victim’s own carelessness helped bring about his injuries.  Under Virginia law, if there is a showing of contributory negligence, the victim cannot recover any damages from the defendant.

As you can imagine, the open and obvious defense is very popular in cases where the hazard might not have been completely hidden:

  • Icy sidewalks
  • Freshly waxed floors
  • Broken walkways
  • Step-downs to a sunken floor
  • Areas under construction

Depending on how the facts are presented, the open and obvious nature of the hazard might present a bar to recovery. But is there a defense to this defense? In fact, there are a couple of ways a plaintiff might defeat the open and obvious defense:

  • Distraction — A hazard may lose its open and obvious quality if there are distractions around it. For example, a step-down from a maître-d’ station may be open and obvious because it’s been painted yellow. But in a bustling restaurant, where music is playing and the décor is eye-catching, the distractions may distract from the hazard.
  • No alternative route — A landlord is usually not liable for an open and obvious hazard because a passerby can see it and will go around it. But if circumstances require a person to encounter the hazard, it may not be unreasonable to do so. Where no alternative route exists, a landlord may have a duty to remedy an open and obvious hazard.

Ultimately, an injured party hoping to hold a property owner accountable for a slip and fall must show they were reasonable but the property owner was not.

If you are injured in a slip and fall Virginia, North Carolina or South Carolina, trust a law firm with more than 200 years of combined legal experience. Call Marcari, Russotto, Spencer & Balaban at (888) 351-1038 or contact us online to schedule a free consultation.

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