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Open & Obvious Defense in West Virginia’s Premises Liability Claims

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    A woman slips on a snow-covered sidewalk

    In the last few years, West Virginia has seen the state Supreme Court abolish the “open and obvious” defense to premises liability accidents, only to have the state legislature pass a statute in an attempt to restore the defense. But exactly what does the open and obvious defense entail, and how can it affect your slip and fall claim?

    Premises liability law protects visitors to a property from hidden hazards that cause slip and fall, or trip and fall, accidents, which may result in serious injuries. When a hazard is “open and obvious,” the law assumes that a reasonable visitor would take notice of the danger and act responsibly to avoid it. Therefore, a person who decides to proceed with knowledge of the hazard is assuming the risk of injury, so if an accident occurs, it is the fault of the visitor, not the landlord. The application of this standard can be quite complicated in practice.

    In 2013, the West Virginia Supreme Court of Appeals changed the existing law in its decision in the matter of Hersh v. E-T Enterprises, Limited Partnership, 232 W. Va. 305 (2013). In its ruling, the court stressed five factors that determine whether a landlord has been reasonable in his duty of care toward visitors:

    • The foreseeability that an injury might occur
    • The severity of injury
    • The time, manner and circumstances under which the injured party entered the premises
    • The normal or expected use made of the premises
    • The magnitude of the burden placed upon the defendant to guard against injury

    In the court’s opinion, the foreseeability of injury from a hazard created a duty for the landlord to remedy the hazard, even one that was open and obvious.

    The state legislature disagreed, and three years later passed WV Code §55-7-28, which says a landlord  “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….” Therefore, the legislature seemed to say, an injured plaintiff cannot sue a landlord for injuries due to an open and obvious hazard.  However, the code section also went on to say, in an example of sloppy drafting, that the purpose of the statute was to restore the law to its pre-Hersh status.

    Reasonable people may disagree whether a dangerous condition was readily apparent. Furthermore, a skilled attorney will argue that there are exceptions to the open and obvious defense, including:

    • Distraction — If the hazard exists in an area where a visitor would see it but might be distracted by activity around the hazard, a plaintiff could claim the distractions effectively hid the hazard at the critical moment. For example, if a restaurant floor has a change in level, and management has painted the edge of the step yellow to alert guests and routinely point out the step to patrons, a patron could still be distracted by music, busy servers passing by, changes in lighting, and other factors. These distractions can take a reasonable person’s attention off the hazard at the precise moment he or she needs to be mindful.
    • Exceptions in pre-Hersh cases — Because of the way the West Virginia legislature drafted the relevant statute, your attorney can make the argument that any exceptions which were in existence prior to the Hersh case are still good law.

    The open and obvious defense is just one reason why premises liability accidents can be difficult to litigate. Our legal professionals examine the facts of your accident and develop your claim to pursue full, fair compensation. For more information, speak with an experienced personal injury attorney at Kaufman & McPherson, PLLC.

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    About the Editor

    Picture of Kevin Kaufman
    Kevin Kaufman

    A 1977 Bridgeport High School graduate, received multiple scholarships including a National Merit Scholarship. He went on to earn a BS in Business Administration, an MBA, and a law degree from West Virginia University.

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