Overcoming the “Obvious Danger” Defense in a Slip and Fall Case
If you were injured from slipping and falling on someone else’s property, you may be able to sue to obtain financial compensation. However, success depends on showing that there was a hazard on the property that the owner or occupant had a duty to repair or to warn potential visitors about. Your lawsuit can be more difficult to win if the hazard that caused your slip and fall was open and obvious.
In California, the open and obvious defense can be raised by a property owner or occupant when an unsafe condition is so apparent that a person could reasonably be expected to observe it. The term “reasonably” means that a person of average intelligence and experience would know not to enter the area where the hazard exists. Usually, it does not matter whether the person who is injured actually noticed the hazard or appreciated the danger it posed. There are exceptions, though, such as when the injured parties are children or people of diminished mental capacity.
However, the fact that a dangerous condition is open and obvious does not automatically absolve the defendant from liability. If it is foreseeable that the condition may cause injury to a visitor who encounters it because of necessity, the property owner or occupant still must use reasonable care to protect visitors against risk of harm. In other words, even if there was no duty to warn of a hazard, there may be a duty to remedy it. For example, it would be foreseeable that a visitor would walk upon a store’s icy walkway if that were the only way to gain entrance.
The question of liability in a case of an open and obvious danger comes down to comparative negligence. In California, an injured person who is found to be partially at fault for an accident can still recover damages, even though damages will be reduced by the victim’s percentage of negligence. For instance, ongoing construction on a property may be considered an open and obvious hazard. But if a visitor reasonably believes it is safe to enter the property and ends up getting hurt, the question becomes to what extent the accident was attributable to the visitor’s conduct and/or to the property owner’s failure to correct a known hazard. If they each had 50 percent of the blame, the victim can still recover half of his or her provable damages.
Premises liability cases are very fact-intensive and require thorough investigation and well-developed evidence. If you were injured in a slip and fall accident, Patterson Law in Santa Barbara is here to help. We have been handling California personal injury cases for more than 30 years. You can arrange a free consultation by calling 888-479-4589 or by contacting us online.