Premises Liability Cases: What Does “Open and Obvious” Mean?

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Madeleine Jones
January 6, 2021

Do you own an office building, rent an apartment, or run a store? You could be held liable for any injuries that happen on your property. Or maybe you were visiting someone else’s property and got injured because of a hazardous condition. In any case, it’s important to understand premises liability laws and their exceptions, like the open and obvious defense. Let’s go over these concepts and how they can affect you as a visitor and landowner or renter in the state of Nevada.

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The Landowner’s Responsibility in a Premises Liability Case

A property landowner owes a duty to protect others from any risk of harm caused by a dangerous condition on their property. If they fail to do this, they could be held liable for any injuries and accidents that happen. This is what we call premises liability.

Each state’s laws vary regarding the exact responsibilities a landowner has. Some require they exercise reasonable care for the visitor’s safety. While others have specific standards of care based on whether the visitors are trespassers or invitees. For example, landowners have a duty to protect invited visitors from dangerous conditions.

A landowner is liable for any harm caused by a dangerous condition in their land if they:

  • Know about, or discover a dangerous condition and realizes that it presents a risk of harm
  • Expect that invited visitors don’t discover the danger or that they will fail to protect themselves against it
  • Fail to exercise reasonable care to protect invited guests from danger

The Open And Obvious Defense

In Nevada, the open and obvious defense is an exception to the premise of liability’s general rule. This defense states that if the dangerous condition was open and obvious to a reasonable person, then the landowner can’t be held liable for failing to fix the dangerous condition or warning the injured person. The idea behind this is that a visitor must recognize the warning signs of a dangerous condition and protect themselves from harm. 

Example of Open And Obvious

Spilled water on the floors of a hotel lobby probably wouldn’t be an obvious dangerous condition since water is clear. People might miss it reasonably. In this case, the hotel probably has the duty to clean the spill as soon as they can and to place a warning sign in the meantime.

However, a pond on someone’s property is an example of an obvious dangerous condition. It is big enough for the average person to see and the property owner doesn’t need to post signs to warn people about it. If a visitor is by the edge of the pond and falls in, the visitor probably wouldn’t win a case based on negligence against the property owner. Given that the pond is an open and obvious dangerous condition, the visitor should have known that it would be risky to stand near the edge of the pond.

Open and Obvious Defense Exceptions

In some cases, even if the dangerous condition is open and obvious, the landowner can’t be relieved of liability and still has to take reasonable care to protect others from getting hurt.  

An exception to the open and obvious rule is when the landowner should expect that visitors would get injured despite knowing of the danger. In this case, they still have the responsibility to protect others from any harm by fixing the dangerous condition or providing warnings.

For instance, if the landowner expects that a visitor would be distracted and don’t notice the dangerous condition or that they would forget what they discovered, then they do have the duty to take reasonable care to protect them. In this case, the fact that the dangerous condition was open and obvious might not relieve the landowner of liability for the injuries that happen.

An example of this exception can be a visitor at a shopping mall using an escalator with a hidden danger. The escalator might have just been cleaned and is slippery, yet that danger is not open and obvious. The shopping mall owner should have placed a warning sign to let visitors know of the danger. If someone gets injured, and the shopping mall owner failed to warn visitors, the owner could not use the open and obvious defense to win his case.

Another exception that might allow for the open and obvious defense is negligence per se. This involves a violation of safety or health status that makes the landowner automatically negligent regardless of the injured party’s actions or awareness. For example, food poisoning at a restaurant. If a person suffers from food poisoning at a restaurant, that means there was a health violation by not providing food that is safe for consumption. Food is normally not an open and obvious hazard, therefore the restaurant owner can’t use this as their defense.

Strategies To Overcome the Open and Obvious Doctrine

1. The Dangerous Condition Was Not Open And Obvious

Even if the defense claims that the dangerous condition was open and obvious, it’s up to the jury to decide. The victim may counter that the dangerous condition was not open and obvious. The victim can dispute that it was reasonable to expect them to avoid the danger by showing the facts to the jury.

2. The Defendant Still Breached The Duty Of Care Relative To The Danger Despite Being Open And Obvious

In Nevada, the defendant still has a duty of care even if the dangerous condition was open and obvious. The landowner is expected to still identify the potential harm and take the necessary steps to avoid people getting hurt. Identifying this can be a good response to the open and obvious doctrine.

3. Comparative Negligence Still Makes The Defendant Liable For The Victim’s Injuries

Like we mentioned above, one of the exceptions of the open and obvious doctrine is negligence. Even if the victim could and should have avoided the dangerous condition, their actions may only reduce their financial recovery. Using comparative negligence can help victims recover damages.

4. The Defense Was Not Pleaded Properly By The Defendant

A proper pleading is critical to fair litigation. The open and obvious doctrine must be pleaded as an affirmative defense when replying to the complaint. If not, a motion to exclude the issue may be appropriate. When you file a proper motion it ensures that the trial is fair and free of surprises.

5. Asking For Jury Instructions

Jury instructions are also very important. The defendant may wish to have the court to read a jury instruction regarding the open and obvious doctrine. However, in Nevada, it is appropriate to also tell the jury about the open and obvious doctrine’s limitations. It is also a good idea to let them know about comparative negligence. The jury has the right to ask for instructions as well at the appropriate time. 

Need Help In A Premises Liability Case? Get Some Help!

Do you have a premises liability case in Nevada that involves the open and obvious doctrine? Are you the victim of serious injuries? We represent accident victims, and we’re prepared to handle complex cases, including the ones involving the open and obvious doctrine. Contact an experienced premises liability attorney at Cogburn Law today. Call us at (702) 748-7777 for a free consultation.

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