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How Does the “Open and Obvious Hazard” Defense Affect Premises Liability Claims?

Premises liability cases arise when one person is injured while on another person’s property. A classic example is the slip-and-fall case. The law imposes a duty on landowners and/or occupiers to inspect their land routinely and, if they find a dangerous condition exists, either to repair the condition or to warn visitors of the hazard. The law also provides landowners with certain defenses to premises liability claims. One such defense is the claim that the hazard causing the injury was “open and obvious.”

A provision of the West Virginia Code that took effect in 2015 provides that a “possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers.”

Scenarios in which defendants could raise the “open and obvious” defense include these:

  • A customer chooses to park in a business’s parking lot and walk to the store during an ice storm.
  • A neighbor takes a short cut and walks through his neighbor’s property on which there is a visible hole.
  • A driver parks in a parking garage and falls while walking down the stairs because the railings had been removed.
  • A delivery person fails to avoid a large pothole that is clearly visible in the customer’s driveway.

Premises liability cases are unique because the duty to warn or to repair depends upon the specific facts of each situation. The issue of whether or not a hazard is open and obvious often requires expert opinion to resolve. A West Virginia attorney who is experienced in premises liability litigation will be able to analyze how the “open and obvious hazard” defense may apply in your case and how to use it to best advantage.

The attorneys of Pullin, Fowler, Flanagan, Brown & Poe, PLLC are experienced in the law controlling premises liability cases in West Virginia. We regularly represent landowners and occupants who are facing suits claiming that injuries were suffered on their properties. Call us at 304-344-0100 or contact us online to arrange a consultation.