What is the ‘open and obvious’ defense?

If you are thinking of bringing a premises liability lawsuit forward, it is important to understand the most common defenses against these suits.

The basics of premise liability state that every landowner has a duty to protect others from dangerous conditions present on their property. However, there are limitations on this duty. According to FindLaw, the open and obvious doctrine can help protect a landowner if the hazardous condition causing an injury would have been ‘open and obvious’ to a reasonable person.

What is a ‘reasonable person?’

There is no singular reasonable person. The reasonable person is a fictitious entity the law created to represent how a typical person would respond to a situation. The actions of a ‘reasonable person’ can differentiate actual negligence from a simple accident.

The metrics for a reasonable person are completely objective and can change depending on the nature of the case. There is no specific IQ cut-off or any other personality or temperamental measure to determine whether an individual is ‘reasonable.’

What is ‘open and obvious?’

Essentially, if the fictitious reasonable person sustains injury, a premise liability suit depends on if the condition causing injury was avoidable to said reasonable person. Assume that a person sustained injury from falling into a large pit on somebody’s property. If the pit is very visible and the injury took place in the middle of a sunny day, the court will likely find that a reasonable person would have avoided the giant pit.

If the injury happened at night and there was inadequate lighting around the pit, then the court will likely find that a reasonable person may very well have not seen the pit.