When is a Condition an “Open and Obvious Defect”?
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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Stephen Gilbert
Tom Begley
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