What Does “Open & Obvious” Mean in Premises Liability Cases?
“Open and Obvious” is a defense term in premises liability litigation and it describes exactly what it says. Say you were visiting someone’s property or you are in a parking lot, the landowner or property owner will claim that he is not liable for your injury because the cracked sidewalk you tripped on or pothole you fell into was obvious and easily viewable by a reasonable person.
That does not address the property owner’s responsibility. If you own property, whether it is occupied or not, you have a responsibility to remove any unreasonable risk of harm on the property.
A parking lot in a dangerous area that is not well lit poses a potential danger; kids might play in an abandoned refrigerator on your property and get locked in; or an uncovered pool could become a swimming hole for uninvited kids.
Regardless of whether the kids should have been there, if the landowner or property owner fails to remove dangerous conditions on the property, he has failed to exercise reasonable care for the safety of any visitor, uninvited or not.
Consider all of the hazards that properties can pose:
*Falling into an abandoned pit.
*Slip and fall.
*Wet or slippery floors.
*Swimming pool accidents.
*Broken elevator and escalators.
*Unsafe playground equipment.
*Electric shocks from wiring.
*An attack in a dark parking lot.
Accidents involving any of the above, whether in a store, in your yard or home, or in a place of business, are what’s known as premises liability.
It is common sense that the owner should care for his own property. In fact, the American Law Institute finds the owner of property is liable if:
*S/he knows about or would have discovered the condition and that it presents an unreasonable risk.
*S/he might expect invitees would not know about the risk and therefore might fail to protect themselves.
*S/he failed to protect invitees from the potential of danger posed by a high-risk situation on her property.
Exceptions to Product Liability
Back now to “open and obvious.” If the hazard posed, whether a dark parking lot or an exposed swimming pool, has an open and obvious potential for danger, there may be an exception to premises liability.
The question becomes whether an average person can easily ascertain that the danger exists. The burden is then placed on the visitor not the property owner, which is a gift to landlords and property owners.
Advancing a premises liability case in Alabama then might depend on the type of visitor:
Invitee – A store owner invites guests into his property to shop. He has the highest duty of care for his invitees. In this case, the owner must keep his property safe and if there is a danger, such as a slippery floor, he is obligated to post a sign. The open and obvious defense is least likely to work in this case.
Licensee – In this case someone might be visiting a home socially. The owner needs to correct any hazardous situations, but the property owner needs to be mindful of any hazards present and can be held liable for dangers.
Trespasser – We owe the least duty of care to a trespasser because they were not invited in any way. If there is a danger present such as an open swimming pool, the property owner should post a warning sign and prevent its entry, but the property owner is not responsible to keep the property safe for trespassers.
Your Alabama Premises Liability Attorney
In an Alabama premises liability case, the defense will likely use “open and obvious” to make its case. This can make the recovery of any compensation challenging, however not impossible. The signage might be missing and the time of day or conditions might not have allowed an obvious hazard to be so obvious.
In certain premises liability cases when there was a likelihood danger could be posed to invitees, such as hotels and bars, and there was no security, the property owner may find himself facing a premises liability lawsuit.
Premise liability cases are challenging in Alabama where the rule of contributory negligence will be used to blame the victim and get their case thrown out of court. In addition, there is a two-year statute of limitations in Alabama from the date of the accident to bring an action.
Attorney Chip Nix has extensive experience successfully representing personal injury victims in Alabama. He has a strong track record recovering compensation in even the more complex and difficult cases. Mr. Nix can be reached in his Montgomery office at (334) 279-7770 or by messaging him online.