In a personal injury case, a defendant may attempt to use what is called the “open and obvious” rule as a defense. The “open and obvious” rule is an exception to premises liability law, which can be utilized as a defense by a property owner to explain why they should not be held liable for injuries a fall on their property.

To determine whether the open and obvious rule will apply in a case is a question best assessed by an experienced attorney. Premises liability laws can be complicated and a lawyer who is familiar with these laws and limitations can ensure the best result. If you have been involved in a fall or accident, speak to an attorney at Silva Injury Law who can assess your case and represent your rights.

Application Of The Open And Obvious Rule

Property owners have a responsibility to visitors on their property to keep the area safe and free of hazardous conditions. Property owners are often held liable when an injury results from their failure to keep conditions safe or to warn of such conditions. However the open and obvious rule, provides a defense for property owners when the injury results from a clearly dangerous condition. Essentially, visitors are expected to exercise their discretion when they are faced with an obvious and apparent danger.

The Court in California has explained that “generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or wan of the condition.” Jacobs v. Coldwell Banker Residential Brokerage Company, 221 Cal Rptr 701, 708 (Cal. Ct. App. 2017). Generally, whether or not a dangerous condition is considered to be open and obvious is determined based on the standard of a “reasonable person.” This means the rule may apply if a certain hazard would be apparent to a reasonable person in the same position, the rule may apply. The standard will be adjusted when the encounter between the injured party and the condition is unusual, such as the injured being of young age.

A defendant who seeks to use the open and obvious rule to show they did not owe a duty of care to the injured plaintiff must show that foreseeability and reasonableness support the application of the rule.


The inquiry into whether or not a plaintiff will succeed in an injury claim, and whether a defendant’s open and obvious defense will succeed are fact-intensive. Experts play a significant role in determining whether the condition was open and obvious, and whether the defendant had a duty to remedy the danger.

California Courts may also present the issue of whether a defect is open and obvious to the jury to determine. Experts play a vital role when this type of issue is presented to a jury-

Your lawyer can argue that the defect was not open and obvious by providing evidence to the jury so they can decide.

Other strategies can also help you overcome the open and obvious defense.

  • The defendant was still negligent relative to the danger and should’ve taken appropriate steps to fix or warn visitors. For example, a hidden danger might occur on an escalator that was just cleaned. It’s conceivable that the elevator was slippery, but it’s not necessarily open and obvious. Visitors using the escalator should be warned that it’s wet and slippery.
  • California is a comparative negligence state, and the defendant is still liable for your injuries even if you were partially at fault for the accident. Even if you could have avoided the hazard, the defendant’s actions might still be responsible for a portion of your injuries.
  • If the defendant violated a health or safety code, they might be automatically liable, regardless of your actions. This situation involves negligence per se. An example of negligence per se is when you get food poisoning at a restaurant. Getting food poisoning is very strong evidence that the restaurant violated a health code because the food served was obviously not safe to eat.

The jury must have the proper instructions and understand the limitations of the open and obvious rule in California.

When It Is Not A Complete Defense

California Courts have established that the open and obvious rule is not a complete defense when “it is foreseeable that the danger may cause injury despite the fact that it is obvious.” Osborn v. Mission Ready Mix 273 Cal. Rptr. 457 (Cal Ct. App. 1990). This most frequently applies when necessity requires a person to encounter a dangerous condition.

Additionally, even if a condition is considered open and obvious, this does not always bar recovery for damages.

Contact An Attorney

An attorney is in the best position to assist you in proving your case. If you have been injured on another’s property, speak with an attorney at Silva Injury Law who can protect your rights. With our years of experience, we can help you overcome an open and obvious defense in your trip and fall case. Contact our office to schedule an initial consultation so we can review your case.

Find Out How We Can Help

At Silva Injury Law we promote healing through compassionate advocacy. With each case tailored to the individual, we look our for your best interests by evaluating your unique circumstances. Contact us today for a FREE in person or remote consultation.