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OPEN AND OBVIOUS CONDITION

OPEN AND OBVIOUS CONDITION

This brief article summarizes the findings of the Nevada Supreme court in Foster v. Costco Wholesale Corp 291 P3d 150. Historically the law of the land throughout the United States stood to absolve landlords of liability in situations where entrants were injured by "open-and-obvious" conditions. However the law has now evolved in many of the states, including Nevada, into a more Plaintiff friendly condition.

A case is no longer foreclosed solely because the Plaintiff's injuries resulted by way of an open and obvious condition. Today the court will consider the nature of the condition in being open-and-obvious by determining whether the landowner owed a duty of reasonable care to the entrants for risks that exist on the property. Thus the open-and-obvious nature of the condition has been removed from a factor that could absolve liability to now being just a in the "reasonable care" calculation made to determine liability.

In calculating liability the court might consider whether the landlord should anticipate harm despite the entrants knowledge, or obviousness, of the condition. For instance is it reasonable to believe that the entrant may be distracted from the condition. Take for example the situation where the plaintiff is injured by a trip/slip and fall, wherein the condition on the floor is obvious but the items on the shelves attract his attention. This condition is known as the distraction exception to the open-and-obvious rule. Another consideration might be whether it is reasonable for the entrant to forget about the obvious condition.

In determining the landlord's duty we should also look at foreseeability and gravity of harm. If it is foreseeable, as in the example above where the customer is observing the shelves and thus not at the ground, then the landowner should take extra precaution. Likewise if the gravity of harm is substantial, say for example the case where the entrant could be killed or badly maimed, the landlord should practice a higher standard of care taking extra precaution to prevent such harm. Of course the entrants' own actions must be considered as well. If the entrant acted foolishly and didn't exercise ordinary and reasonable care then this foolishness should be counted against him.

Not only does the open-and-obvious nature of the condition bear on determining whether reasonable care was taken but it also bears on determinations of comparative fault. Thus when an entrant onto property is injured by an open and obvious condition then he may be partially responsible for his injuries. If his own negligence exceeded that of the landowners then this will act as a complete bar to any recovery for the plaintiff.

Categories: Personal Injury