Marcari, Russotto, Spencer & Balaban
Free Consultations: (888) 351-1038
Blog

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.

Post a Comment

Your email is never published nor shared. Required fields are marked *

*
*

What our clients say
Reviews
Reviews
  • lawyers
    5.0/5.0

    I have worked with the firm for my daughter's case. Halima Sharif our paralegal and case coordinator was very helpful and available throughout the...

    Read more

    Client

  • lawyers
    5.0/5.0

    I am very pleased with the outcome of my case big thank you to Ms Mann and Ms Allie I appreciate all your hard work and yes I will recommend this...

    Read more

    Client

  • lawyers
    5.0/5.0

    I am a widow of a Vietnam Vet and the firm represented me on a pending appeal with the VA and did a great job and won me the case. They are great...

    Read more

    Client

  • lawyers
    5.0/5.0

    Very kind people

    Read more

    Client

  • lawyers
    5.0/5.0

    I had a horrible accident with multiple injuries. Insurances, medical & auto, were problematic. Some medical facilities understood & a few were...

    Read more

    Client

See all reviews
Get excellent legal representation at an office close to you.
  • This field is for validation purposes and should be left unchanged.
Call for free consultation

(888) 351-1038


Questions?

Our trained operators are ready to assist.

Start Chat
Offices serving North Carolina, South Carolina & Virginia

Available 24/7 — We’ll come to you

View all locations
back to top