OVERCOMING THE OBVIOUS DANGER DEFENSE IN PREMISES LIABILITY
Nov. 30, 2021
A homeowner or business such as an apartment complex, retail establishment, restaurant or other property owner can be held financially liable for injuries sustained on the property. An injured party must be able to show that the property owner was in some way negligent in maintaining the property and not protecting passerby or visitors from harm.
In most cases, landowners owe what’s called a “duty of care” to protect others from dangerous situations on their property. Examples of this include things like:
Maintaining a fence or barrier around a pool to protect children from drowning
Posting signage warning of the potential danger presented by a wet floor
Posting signage warning of potential hazards from a construction project or ongoing maintenance issue
A plaintiff must demonstrate that they were owed a duty of care, that a property owner breached that duty of care and that the plaintiff suffered injury as a direct result of that breach – in other words, negligence.
There is an exception to this general rule, and that is the “obvious danger” defense. This defense is basically the idea that the danger was so open and obvious that a reasonable person would have spotted it and easily been able to avoid it, thus freeing the property owner from some of the liability. This strategy of defense aims to eliminate or at least reduce the property owner’s financial obligation to the plaintiff for their injuries.
Our firm is skilled in overcoming this defense by first establishing that it was and always is the duty of a property owner to provide a safe environment for visitors to the property. Establishing a duty of care is the priority because it places the responsibility for care and caution first and foremost on the property owner – not on you the injured party.
In one case, our client and a family member were shopping for a car and visiting a used car lot. The real estate company that owned the property knew a hazard existed and had attempted to cover a hole in the parking lot with a piece of plywood. However, they failed to properly maintain and make repairs to the property. The plywood was crumbling. As a result, the hazard became more dangerous because the hole was covered in a way that made the property seem safer than it actually was. Our client, the victim, fell and broke her ankle and thankfully did not fall into the hole itself. While the real estate company had attempted to cover the hole, the hazard still existed and clearly caused harm. The real estate company failed to maintain its duty of care for visitors to their property. In this case, we showed first and foremost that the property owner bore the responsibility to maintain a safe environment – as evidenced by the fact that they had attempted to cover the hole. Our legal strategy correctly placed the duty of care fully on the property owner and appropriately shielded our client from financial responsibility.
Have you been injured in a premises liability case? Are you being blamed for failing to avoid an “obvious danger”? Talk to us for help. We can overcome this defense and help you recover the settlement you deserve.