A Capehart Scatchard Blog

When is a Condition an “Open and Obvious Defect”?

By on December 2, 2016 in Duty of Care, Liability with 0 Comments

A business owner owes to its invitees a duty of reasonable care to provide a safe premises. This duty includes an affirmative duty to inspect the premises and requires the business owner to discover and eliminate dangerous conditions and to maintain the premises in a safe condition. But, what if the condition is an “open and obvious defect”? Does the business owner owe to its invitee a duty to eliminate or warn of such a condition?

The short answer is it depends upon the obviousness of the condition and whether the invitee would realize the hazard and protect himself/herself against it. In determining whether the defendant was negligent in maintaining his/her premises, even if the condition was observable to the invitee, the court would consider whether the condition presents an unreasonable hazard to invitees under the circumstances of the case.

There are New Jersey cases in which the court determined that the condition was sufficiently obvious that the defendant was entitled to a dismissal:

Lokar v. Church of the Sacred Heart, 24 N.J. 549 (1957) (Court dismissed negligence action brought against church by plaintiff who was tripped by chain driveway barrier of which plaintiff was aware and which tripped plaintiff when it was swung into plaintiff’s ankles by another parishioner.)

 Jimenez v. Applebee’s Neighborhood Grill & Bar, No. A-2247-13T2, 2015 N.J. Super. Unpub. LEXIS 430 (App. Div. Mar. 4, 2015) (Court granted summary judgment for defendant landowner, holding the danger to plaintiff business-invitee, who was burned by hot grease that splattered in his face when he bowed his head to pray directly over a sizzling dish, was self-evident.)

Cunningham v. Briarwood Care & Rehab. Ctr., Inc., No. A-1489-14T2, 2016 N.J. Super. Unpub. LEXIS 566 (App. Div. Mar. 15, 2016) (Court granted summary judgment for defendant landowner, holding that mattress over which plaintiff business-invitee tripped while visiting resident in a facility was an open and obvious condition because plaintiff had seen the mattress on the floor earlier.)

This defense is one that should always be considered in a premises liability case. It will be more difficult to pursue a dismissal on a summary judgment basis, however, if the plaintiff does not admit to seeing the “dangerous” condition before his/her accident. But, even if the court does not dismiss on this basis, a defendant can continue to pursue a comparative negligence defense due to plaintiff’s failure to observe (and avoid) an obvious hazard.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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