The open and obvious doctrine is a common defense in slip and fall cases. Property owners argue they shouldn't be liable for hazards that injured parties could easily see and avoid. Understanding this doctrine—and its limitations—helps plaintiffs overcome this defense.
What Is the Open and Obvious Doctrine?
The open and obvious doctrine holds that property owners may not be liable for hazards that are readily apparent to ordinary users of the property. The theory is that obvious hazards effectively warn themselves—people who see them can take precautions to avoid injury.
Under this doctrine, owners argue they had no duty to warn of or protect against hazards that visitors could clearly see.
Application Varies by Jurisdiction
States apply the open and obvious doctrine differently:
Some jurisdictions treat obvious hazards as completely eliminating duty—if the hazard was open and obvious, the owner has no liability regardless of circumstances.
Other jurisdictions treat obviousness as one factor in the overall analysis, considering whether the owner should have taken additional precautions despite the hazard's visibility.
Many jurisdictions apply comparative fault—the plaintiff's failure to avoid an obvious hazard reduces but doesn't eliminate recovery.
Limitations on the Defense
The open and obvious defense has important limitations:
Distraction exception: Owners may be liable for obvious hazards when they should anticipate visitors will be distracted. A store creating promotional displays that draw customer attention may not avoid liability for a wet floor nearby.
Necessity exception: When visitors must encounter the hazard to use the premises as intended, the open and obvious defense may not apply. An obvious hazard blocking the only entrance doesn't excuse the owner.
Unreasonable risk despite obviousness: Some jurisdictions hold that certain hazards create unreasonable risks even when visible, and owners must address them regardless.
What Makes a Hazard "Open and Obvious"?
Factors determining whether a hazard was open and obvious include visibility and lighting conditions, the hazard's size and prominence, whether the hazard contrasted with surroundings, how much attention it would naturally attract, and the plaintiff's familiarity with the area.
A small height variation might not be obvious; a gaping hole clearly is. Context matters in determining what a reasonable person would notice.
Countering Open and Obvious Arguments
Challenge open and obvious defenses by arguing poor lighting obscured the hazard, the hazard blended with surroundings, legitimate distractions prevented noticing, the hazard was partially concealed, the plaintiff's attention was reasonably directed elsewhere, and the owner should have anticipated the hazard would be missed.
Just because a hazard could theoretically be seen doesn't mean a reasonable person in context would notice it.
Natural Accumulations
Some jurisdictions combine open and obvious doctrine with natural accumulation rules for ice and snow. Natural ice and snow may be considered open and obvious winter hazards that property owners need not address.
However, unnatural accumulations or ice created by owner negligence typically don't receive this protection.
Evidence About Obviousness
Build your case against open and obvious defenses with photographs showing the hazard's appearance at the time, evidence about lighting and visibility conditions, testimony about what reasonably drew your attention, evidence of what you were doing when you fell, and expert testimony on human factors and attention.
Practical Implications
The open and obvious doctrine doesn't mean property owners can ignore visible hazards. Many courts reject the notion that owners can create or tolerate dangerous conditions simply because they're visible. The doctrine affects but doesn't eliminate premises liability.
Understanding how your jurisdiction applies this doctrine helps evaluate your case and prepare appropriate arguments.