Who’s Responsible When There’s an Open and Obvious Danger on Property

We often hear about frivolous lawsuits, when people sue just because they can, knowing they have little or no chance of winning. What we usually don’t hear about are those same lawsuits that are thrown out because of their lack of legal merit.

Recently, a New Jersey Appellate Court ruled that a man who was burned while leaning over a hot plate of fajitas to pray couldn’t sue the Applebee’s that served him the scorching food.   Why? According to the ruling, the food was served in a sizzling skillet that was an open and obvious danger. The ruling stated that the hot food was “self-evident,” and that Applebee’s “had no duty to warn [the patron] that the food was sizzling hot and should be approached with due care.”

So what is an open and obvious danger? It’s a danger in plain view that anyone using reasonable care would have seen and avoided so as to avoid injury. For example, a store generally doesn’t need to warn its customers “this is a brick wall, do not run into it.” As with the case of the fajitas, the customer should have seen that the food was extremely hot and avoided leaning over it. Makes sense, right?

While the fajita ruling was a clear-cut case, most premises liability cases using the open and obvious defense aren’t so easy.   Following are some scenarios that make the open and obvious defense more difficult:

1.) In Georgia, property owners or possessors are generally required to maintain a reasonably safe property for their tenants and guests. If there is a danger, the property owner should take measures to warn about and/or remove the danger from the premises. For example, grocery stores should take reasonable efforts to be sure that steps used by patrons or employees are free of ice after a snowstorm. Although people know that steps get icy during the winter and should be careful when descending them, the owner is responsible for using reasonable care to remove the ice and ensure their safety.

2.) Even if something is obvious, a person may get distracted and not notice the danger. For example, if you’re watching for traffic while walking on the sidewalk and fall into a large hole, the landowner might still be liable, even though the hole was in plain view and obvious. If the landowner knew that people walked on the sidewalk and that traffic might distract someone, the owner should have put a fence around the hole or taken other reasonable measures, to keep anyone from falling in.

Just because a danger appears to be open and obvious (like a pothole, for example) does not always completely relieve the property owner of his or her duty to maintain a safe property for his/her guests.  By the same token, a guest on someone’s property must take reasonable care to avoid a dangerous situation when that danger is obvious and in plain view. The issues in these cases involve who had greater knowledge of a hazard. Who wins and who loses in these cases depends upon the specific details of the factual situations in each case.

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