Business owners and property managers may face liability when someone is injured on their property. Premises liability claims often revolve around dangerous conditions that allegedly caused harm. However, not all situations create legal responsibility. In some cases, the property owner can rely on what is known as the open and obvious defense.
This defense applies when the hazard that caused the injury would have been clear to a reasonable person. If the condition was open and obvious, the business owner may not be required to fix it or provide warnings. Courts generally expect visitors to notice and avoid clear dangers on their own.
Are there any exceptions to the open and obvious defense?
Although this defense can limit liability, it is not absolute. Courts may still find a business or property owner legally responsible in the following circumstances:
- Foreseeable distraction: If the property owner could anticipate that visitors might become distracted and fail to notice a visible hazard, they may still be held accountable. A common example is when a store layout or display draws attention away from a nearby spill or step.
- No safe alternative: When visitors have no reasonable choice but to cross a hazardous area, the property owner may be responsible. If the only way to enter or exit a space requires encountering the danger, the open and obvious defense may not apply.
- Violation of safety laws: If a property owner violates a law or ordinance designed to protect public safety, that violation may override the open and obvious defense. Known as negligence per se, this applies when a statute was created to prevent the type of harm that occurred.
- Lack of warning or protective measures: Even when a danger is visible, failure to place appropriate signage, barriers or other precautions can still support a claim. Courts often consider whether the property owner took reasonable steps to prevent injury.
Premises liability claims are often fact-specific. While the open and obvious defense can be effective, legal guidance is helpful for evaluating its role and preparing a strong response.