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The Open and Obvious Defense Isn't Always Valid

Many defendants in premises liability lawsuits will try to refute your case. The strategies they might employ have to be based on the claims you make. One of the most common is called the open and obvious defense.

In this strategy, the defendant claims that the hazard that led to the injury was one that a reasonable person would have noticed and subsequently protected themselves against. Thus, the defendant shouldn't be held liable for the resulting damages.

It is important to note that this strategy isn't foolproof. There are times when it isn't going to be a valid argument. For example, a wet floor at a business might seem open and obvious but the business usually isn't relieved from liability based on this alone. Instead, businesses need to take reasonable steps to alert patrons that the floor is wet and to dry the area. Using wet floor signs and cleaning the spill up immediately are two expected actions that they should take to prevent customers from slipping.

Property owners, including homeowners, have a duty to take reasonable steps to protect people who are on their property. This means correcting hazardous conditions quickly. Being negligent in this matter can automatically discount the open and obvious defense. For example, if a stair railing is falling down and the owner doesn't fix it, he or she couldn't claim that a reasonable person should be able to tell that it isn't safe. Instead, the property owner would likely be liable for the damages if a person falls down the stairs since they can't hold the railing.

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