What Happened to “Open and Obvious” as an Affirmative Defense?

Another tried and true defense to slip and fall accidents is taking a beating in the appellate courts. Open and Obvious Condition was used for years as an affrmative defense to show first contributory fault on the part of the plaintiff and later as an element in proving substantial comparative negligence. In the former, it was an absolute bar to recover and in the latter if the comparative fault was more than 50% in some states the plaintiff could not recover. The current status of the defense is illustrated by the Supreme Court of Michigan in Bertrand v. Alan Ford, Inc. 499 Mich. 606, 537 N. W. 2d 185 (1995). There is no question that the land owner owes a duty of care to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of land that the land owner knows or should know that invitees will not discover, realize or protect themselves against. (Restatement (Second) of Torts at 343)

Generally, if the hazard is known to the invitee, there is not duty to warn of that of which he already knows. If it is obvious, there is no duty to warn unless the possessor should have anticipated that the condition would create harm even if the invitee knew about it. In the Bertrand case, the plaintiff fell from a narrow section of sidewalk located in front of a cashier’s window. While she knew it was narrow, but in order to pay for the repair work on her car, she had to stand on the sidewalk. As she stepped backward, she fell. Alleging the car agency should have put guardrails or signs warning her of the hazard, she filed suit. The Supreme Court held that the conditions presented an unreasonable risk of harm in spite of the fact the condition was obvious.