The “Open and Obvious” Defense is a common weapon used by Defendant Landowners against individuals alleging injuries as a result of dangerous conditions on property. Defense counsel routinely argue that their client could not have breached any Standard of Care because the alleged hazard was “open and obvious” and should have been seen and avoided by the Plaintiff.
We observe that Defendants continue to rely upon this Defense, failing to realize that Nevada’s Supreme Court has confirmed it does not automatically relieve landowners from the General Duty of Reasonable Care.
In Foster v. Costco Wholesale Corporation, 291 P.3d 150 (2012) the Nevada Supreme Court clarified the significance of the open and obvious nature of a dangerous condition in a Premises Liability Case.
Foster concerned a customer of the retail warehouse store (Costco) who suffered injuries when he tripped and fell over a wooden pallet. The District Court granted Summary Judgment to Costco, holding as a matter of law that it had not breached its duty because the pallet was open and obvious.
The Supreme Court changed the law on landowner liability. Just because a condition is obvious doesn’t mean the landowner isn’t responsible. The risk may affect the Jury’s decision, but the Defendant can still be held responsible.
Open and Obvious Doctrine in Nevada
The Open and Obvious Doctrine is a component of Nevada’s premises liability law that holds landowners or occupiers accountable for injuries caused by hazardous conditions on their property. According to the doctrine, a landowner or occupier cannot be held liable for an injury if the injured person was aware of the condition that caused it.
The practical effect of this opinion is that it is nearly impossible for Defendants to prevail as a matter of law by using the Open and Obvious Defense. The Foster Case ensures that the focus of Premises Liability cases will be whether the land possessor violated a duty of reasonable care to avoid or eradicate risks that could cause injuries to third parties.
Though Plaintiffs will continue to face questions about their own carefulness, the “Open and Obvious” escape hatch has been closed.
Strategies for Overcoming the Open and Obvious Doctrine
The open and obvious doctrine is a defense that premises owners can use to avoid liability for injuries sustained on their property if the hazard was open and obvious. The idea is that a reasonable person would have noticed the danger and used caution in order to avoid injury.
However, this defense may not always be successful when it comes to premises liability cases. In order to overcome this defense, plaintiffs should consider taking the following steps.
1. Prove that the Defendant had Notice of the Hazard: In order to overcome the open and obvious defense, plaintiffs must prove that the defendant either knew or should have known about the hazard. This is typically done by showing that the defendant received actual notice (e.g., a complaint) or constructive notice (e.g., through inspection) of the hazardous condition .
2. Show that the Hazard Was Not Open and Obvious: In some cases, a plaintiff may be able to show that the hazard was not as open and obvious as the defendant claims. This can be done by demonstrating that the hazard was hidden from plain sight or by showing that a reasonable person would not have expected such a danger in an area of the premises.
3. To determine liability, it must be shown that the defendant did not take reasonable precautions to prevent or lessen harm, even if the hazard was obvious. The plaintiff must establish that the defendant was responsible for ensuring visitors’ safety, but did not fulfill this duty.
4 . Show that the Plaintiff Took Reasonable Steps to Avoid Injury: Although it is not possible to completely eliminate the open and obvious defense, a plaintiff may be able to reduce the likelihood of a successful defense by showing that they took reasonable steps to avoid injury. For example, if the plaintiff saw the hazard and attempted to avoid it, this could demonstrate they were being cautious and taking reasonable steps to protect themselves.
The Open and Obvious Doctrine may be an effective defense in some Premises Liability cases, but it can be overcome by Plaintiffs who are willing to present a strong case. In many instances, the Defendant will have had Notice of the hazard or it will not have been as open and obvious as they claim. Furthermore, if the defendant failed to exercise reasonable care to prevent or mitigate foreseeable
Overcoming the Open and Obvious Doctrine in Premises Liability Claims
The open and obvious doctrine is a common defense used in premises liability cases, which states that the defendant is not liable for an injury incurred on their property if the hazard was open and obvious. This can be difficult to overcome when pursuing a premises liability claim, however, there are certain strategies that can be used to help win such a case.
In order to successfully overcome the open and obvious doctrine, it may also be necessary to demonstrate that the defendant failed to exercise reasonable care in order to prevent or mitigate potential injuries. This could involve showing that the defendant had a duty of care to protect visitors from foreseeable harm, yet failed to do so.
One strategy for overcoming the open and obvious doctrine is to prove that the defendant had notice of the hazard. This can be done by demonstrating that the defendant received either actual or constructive notice of the hazardous condition on their property.
Additionally, it may also be possible to show that the hazard was not as open and obvious as the defendant claims. This could be done by demonstrating that the hazard was hidden from plain sight or by arguing that a reasonable person would not have expected such a danger in an area of the premises.
To establish that a defendant did not take reasonable care to prevent or reduce harm, a plaintiff should provide evidence that the defendant had a responsibility to safeguard visitors from predictable dangers, but failed to do so.
Furthermore, it could be beneficial for the plaintiff to demonstrate that they took appropriate measures to avoid harm, such as trying to avoid the hazard when they noticed it.
Don’t let “Open and Obvious” be a roadblock to justice. Call Shook & Stone.
Overall, the open and obvious doctrine is a formidable defense in premises liability cases and can be difficult to overcome.
However, by proving that the defendant had notice of the hazard, demonstrating that the hazard was not as open and obvious as claimed, showing that the defendant failed to exercise reasonable care, and demonstrating that the plaintiff took reasonable steps to avoid injury, it is possible to win a premises liability claim even when the open and obvious defense is raised.
Shook & Stone provides expert legal representation for clients involved in premises liability cases. Our experienced attorneys navigate the complexities of the “Open and Obvious” defense to ensure our clients receive the compensation they deserve.
Trust Shook & Stone to fight for your rights and hold negligent parties accountable.
If you are looking for one of the best Las Vegas premises Liability lawyers contact us at (702) 570-0000 for a free consultation.