Facing the “Open and Obvious” Defense in Premises Liability Cases

Property owners have a responsibility to ensure their premises are reasonably safe for visitors and to provide adequate warnings about any hazardous conditions. Similarly, visitors are expected to exercise reasonable care while on the property. But what happens when an obvious danger is present, and someone gets injured by it? In such cases, couldn’t both the property owner and the visitor be at fault?

When an injured person files a lawsuit against a property owner seeking damages, the owner might raise the “open and obvious” defense. This defense asserts that the hazardous condition was so apparent that any reasonable person should have noticed it and avoided it. Essentially, this defense shifts most of the blame for the accident onto the plaintiff, aiming to reduce or eliminate the owner’s liability.

However, the open and obvious defense is not foolproof. Under Massachusetts law, it mainly protects the property owner from being held liable for failing to warn about the hazard. Even if a danger is open and obvious, property owners can still be held liable for failing to maintain a reasonably safe environment. While the duty to warn diminishes for open and obvious hazards, the property owner’s obligation to fix or remove the danger remains unchanged. On the flip side, the plaintiff’s duty to avoid the hazard increases in such scenarios.

The Massachusetts rule of modified comparative negligence plays an important role in determining the recovery of damages in premises liability cases. Comparative negligence means that if you are injured on someone’s property and are found partially at fault for not recognizing an obvious hazard, the amount of damages you receive will be reduced by your percentage of fault. However, you can still recover damages as long as your fault does not exceed 50 percent. For instance, if your total damages are $100,000 and the jury finds you 25 percent at fault, you would be awarded $75,000.

If you or a loved one have been injured due to a property owner’s negligence or irresponsible actions, call on Feinberg & Alban PC, a Boston law firm with years of experience in premises liability cases. Please call 617-232-5950 or contact us online to make an appointment for a free initial consultation.