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What is an "open and obvious" danger in premises liability law?

Premises liability law varies by state. In general, though, a property owner in Florida may be liable to invitees injured on their premises, if the property owner either knew or through reasonable care should have known that there was a hazardous condition on the premises. In addition, others on their property would not know about the hazard or would not be able to protect themselves against it and the property owner fails to take reasonable measures to remedy the hazard or warn others of it.

However, property owners facing a premises liability claim might try to employ the, "open and obvious" defense. Under this defense, if a reasonable person would, through a casual inspection, have found the hazard to be open and obvious, the property owner is not responsible for injuries caused by the hazard. This is based on the notion that a person should understand when an obvious danger exists and take care to avoid the hazard.

There are exceptions to the open and obvious defense that those pursuing a premises liability claim may be able to use to their advantage. One exception is if the property owner should expect that the hazard could injure someone despite the hazard being open and obvious. If this is the case, the property owner must remedy the danger or at least adequately warn others of the hazard. For example, if it is expected that someone on the premises would not notice the danger because they were distracted or if it is expected that a person would forget about the danger, then the property owner might still be liable for injuries caused by the hazard.

In addition, depending on the circumstances, a person injured on another's property may claim that the property owner was negligent per se. This might be the case if the hazard violated a health or safety code. In this circumstance, the property owner cannot employ the open and obvious defense.

So, it is possible to make a successful argument against the open and obvious defense. But, premises liability claims can be complex, and this post cannot promise a specific result in any one person's case nor can it replace the advice of an attorney. Therefore, those who want to learn more about how to counter the open and obvious defense will want to seek the guidance they need to have their questions answered.

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