Kentucky Law Blog

Mark’s Notes on Legal Topics of Interest

What is the “open and obvious” defense?

If you slip and fall and sustain injuries on another person’s property in Kentucky, you have the right to file a personal injury claim for compensation. Once you submit the complaint, the defendant has the opportunity to pay the claim, negotiate a lower amount or deny the claim altogether. If the defendant chooses to deny the claim, he or she may use the “open and obvious” defense. FindLaw explains how the “open and obvious” defense works and exceptions to this argument.

Per premises liability law, the courts may hold a landowner or occupier liable for injuries another person sustains on his or her property. The reasoning for doing so is that, under the law, landowners and residents have a duty to protect others from unreasonable risk of harm caused by dangerous property conditions. In most jurisdictions, however, the open and obvious doctrine serves as an immunity to the general premises liability rule.

The open and obvious doctrine states that if a condition or hazard is out in the open and obvious to any reasonable observer, then the courts cannot hold a landowner or occupier liable for failing to fix or warn of the condition. This is the case even if the injury results from the hazard. In some states, the courts may reduce liability (rather than eliminate it) for damages that are the result of a clear or visible condition. The theory behind this doctrine is that a reasonable person should be able to assess visual clues and warning signs and take appropriate measures to protect him- or herself from harm.

There are two exceptions to the open and obvious exception. The first exception exists when the landowner or occupier expects people to sustain injuries despite the openness or obviousness of a property condition. The second exists when the property condition is a direct violation of health or safety rules and regulations. The courts refer to the second exception as negligence per se.

You should not use this article as legal advice. It is for educational purposes only.

On behalf of Mark Knight Attorney at Law