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Strategies to overcome a landowner’s open and obvious defense

On Behalf of | Jun 30, 2023 | Firm News

In Mississippi, defendants use various tactics, such as the “open and obvious” defense, to avoid liability for a victim’s injuries in a premises liability case. By understanding the nuances of premises liability law and exceptions to the open and obvious rule, injured parties can become more informed on the best ways to protect their rights.

The open and obvious doctrine

Suppose an individual suffers a serious injury in a shopping mall, grocery store or other location. In that case, they may have a right to compensation from the premises owner if the accident was due to a wet floor, icy sidewalk, poorly lit walkway or similar hazards. Under the open and obvious doctrine, if a hazard or condition was readily apparent to a reasonable individual, the court may not hold the premises owner liable for injuries sustained by the plaintiff.

This defense says visitors should exercise reasonable care by recognizing and avoiding areas with obvious dangers. However, the victim may present compelling arguments to challenge the defendant’s claim that the danger was open and obvious.

Foreseeability of harm exception

One of the strategies for overcoming the premises liability open and obvious defense is the defendant’s duty of care, even if a danger is open and obvious.

The open and obvious doctrine is not an automatic remedy, and the landowner still needs to identify potential hazards and protect others on the premises by providing adequate warnings or performing repairs. If a reasonable person might recognize the hazard, the law will say the landowner should have also known. Identifying this nuance in the law can offer a viable response to the open and obvious doctrine.

Negligence per se exception

The concept of negligence per se says that regardless of the injured party’s awareness of hazards or their actions, the landowner may be liable if they have violated any health or safety statutes. When the premises owner’s violation of law results in the victim becoming injured, such as failing to install required handrails on stairways, this would establish negligence.

Navigating premises liability cases requires a thorough understanding of the open and obvious doctrine and exceptions to this defense. With a strong defense, accident victims can protect their rights and receive the full compensation they deserve for their injuries.