Generally, the law is that landowners are not liable for injuries caused by dangers, which are known or obvious to invitees, in that it can be presumed that an invitee will perceive an obvious condition. Thus, the possessor of land is not liable to his invitees for physical harm caused to them by an activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. However, at least one court has found that, although the premises liability open and obvious danger doctrine may, in certain circumstances, discharge the duty to warn, it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition.
Consequently, when the issue is whether or not the landowner maintained the property in a reasonably safe condition, as opposed to whether or not the landowner satisfied its duty to warn of dangerous conditions, the issue of whether or not the hazard was open and obvious is an issue of premises liability comparative negligence, which is normally an “affirmative defense,” rather than an essential element of a claim. However, if a tortfeasor can establish that, even though the property was not in a reasonably safe condition, this did not “cause” the claimant’s harm, because the claimant was aware of the danger, it may be possible to establish that a claimant has not met an essential element of the claim: that of “causation.” In general, however, other than when applied to alleviate a tortfeasor’s responsibility to warn, the open and obvious doctrine will almost always be considered to determine if the claimant was comparatively negligent, and, if so, to what degree.
If you have a situation concerning open and obvious premises liability cases, please contact the personal injury expert legal team of Corless Barfield Trial Group at 877-517-5595.