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Facing the “Open and Obvious” Defense in a Slip and Fall Case

Property owners have a duty to make their property reasonably safe for people who visit and to give adequate warning of hazardous conditions. Similarly, visitors have a duty to use reasonable care while they are on the premises. So how does the law apply in a situation where an obvious danger exists on the owner’s property and someone stumbles across that danger and gets hurt? Couldn’t it be argued that both the owner and the visitor were at fault?

In New York, the answers to these questions aren’t as simple as they would first appear. If an injured person files a lawsuit against the property owner seeking damages, a common defense that can be raised is that the danger was open and obvious, which New York law defines as a condition that “is readily observable by the reasonable use of one’s senses.” The defense attempts to put the majority of blame for the accident upon the plaintiff for the purpose of avoiding damages.

However, the open and obvious defense is imperfect. It only shields the property owner from being held liable for failing to warn the plaintiff. Visitors may still hold owners liable for failure to maintain the property in a reasonably safe condition. The owner’s duty to warn decreases for an open and obvious condition and the plaintiff’s duty to avoid the condition increases, but the owner’s duty to remedy the condition remains the same.

All of this is relevant to the issue of comparative negligence and how it affects recovery of money damages. Comparative negligence means that if you slip and fall on someone’s property and the jury finds you partially at fault for not recognizing the hazardous condition, the amount of damages you receive will be reduced by the percentage of your negligence. But the owner’s failure to maintain the property still may be deemed the main cause of the accident. For example, if you had damages of $100,000 and the jury decides you were only 25 percent at fault, you would be awarded $75,000.

The lawyers at Goldberg Sager & Associates have extensive experience representing clients in slip and fall cases throughout New York City, including cases that raise the open and obvious danger defense. If you or a family member was hurt in a fall on someone else’s property, please call our Brooklyn office at 718-514-9516 or contact us online to schedule a free consultation.

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  • Brooklyn Office
    1628 Kings Highway at East 17th Street
    Brooklyn, New York 11229
    Phone: 718-645-6677