What does the phrase “open and obvious defense” mean — particularly in premises liability law?
Without context, the phrase can be confusing. On the surface, the two words “open” and “obvious” don’t seem to go together.
In law, “open and obvious” typically comes into play in slip and fall cases. An open and obvious defense is something that a property owner would use to escape liability — to avoid being held responsible for another party’s fall.
A property owner has a legal duty to protect people against known — and sometimes unknown — dangers on their property.
Using an open and obvious defense, a property owner might claim that the danger encountered was out in the open and so obvious that the injured party could have avoided it.
How an Open and Obvious Defense Might Be Applied
To help illustrate this point, let’s consider hypothetical example. Imagine walking in a fantasy world and suddenly falling into a giant rabbit hole on somebody’s property.
If you saw the giant rabbit hole and then proceeded to fall into it, the property owner might have a legitimate claim that the hole was open and obvious. The hole was out in the open and was so obvious that, as you walked toward it, you shouldn’t have slipped and fallen into it.
In reality, matters are often quite different. Commonly, the question of whether something was actually open and obvious is unclear and confusing.
So, let’s change one fact in the fantasy hypothetical above. Everything else stays the same except for the fact that this fall happened at night in the dark.
There you are, walking in the dark and you suddenly fall into a giant rabbit hole. In that situation, you could argue that there nothing open or obvious about the hole. You couldn’t see it.
But what if there were a warning sign in front of the hole? What if the sign read, “WARNING: Giant Rabbit Hole Ahead.” In this case, the property owner would argue that they warned you about the hole. You might argue that you couldn’t see the warning sign because it was dark.
Dealing with an Open and Obvious Defense? Contact Negretti & Associates
As you can see, you can go down a giant rabbit hole wrestling with whether a danger is open and obvious. It’s a defense that is subject to wide interpretation.
For this reason, if you’ve been involved in a slip-and-fall case, it’s important to work with an experienced attorney who is familiar with your state’s premises liability laws, including the open and obvious defense.
Negretti & Associates handles premises law cases in Arizona, California, and Colorado. If your accident case has elements that aren’t so open or obvious, contact our team of premises liability lawyers. Contact us online, call us at 1-833-827-3535, or send us a text.