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Is “Open and Obvious” an Automatic Defense in Premises Liability Cases?

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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.

Upon review, the Supreme Court reexamined the law of landowner liability and reversed the District Court, concluding that the open and obvious nature of a condition does not automatically relieve a landowner of its duty to exercise reasonable care. Naturally, the nature of the risk may impact the Jury’s assessment of whether the landowner exercised reasonable care, or whether the Plaintiff was contributorily negligence, but it will not necessarily relieve the Defendant from culpability.

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.

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