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Overcoming Defenses in a Slip and Fall Case

This entry was posted on Friday, April 15th, 2016

Posted in News & Articles | Posted by:

If you have been injured by a hazard on business premises, you may be surprised to learn that certain

slip and falldefenses may relieve the proprietor of liability for your injuries.  Your right to compensation isn’t automatic. Two defenses frequently raised by businesses are the “open and obvious” defense and the “natural condition” defense. These defenses are not always fatal. An experienced San Diego slip and fall attorney will know the arguments and strategies that work best to overcome them.

Proprietor’s Duty to Customers and Guests

Whenever we enter a business premises, we hope that the proprietor will be attentive to our needs, and we expect the proprietor to be concerned for our physical safety. We do not anticipate there to be traps or pitfalls lurking on the premises.

That, of course, is pretty much what the law expects, too. The law requires a business owner to exercise reasonable care for the safety of people who come upon his premises. The law expects him to keep his premises reasonably safe for his customers.

But there are limits to the proprietor’s legal duty. He will not be held liable, for example, for injuries that result entirely from the customer’s own fault or carelessness.  One specific limitation on a proprietor’s duty to his customers is known as the “open and obvious” exception.

Open and Obvious Hazards

The proprietor does not (generally) have a duty to protect customers from hazards on his premises that the customer is aware of, or to protect the customer from conditions that are “open and obvious.”

But will the fact that a hazard is open and obvious always relieve the proprietor of liability?  No; there are exceptions to the exception; and one of them is the “distraction” rule.  It imposes liability on the proprietor if he should have been able to foresee that a customer could be so distracted that the customer wouldn’t notice the hazard or would forget about it.

Let’s say for example, there is a concrete post standing just outside a store’s entrance (erected for the purpose of preventing cars from coming up onto the sidewalk–these are the facts of an actual case).  Suppose that a customer came in through that entrance; there can be no doubt that he’s seen the “open and obvious” post.  Then while in the store, the customer bought a full-length mirror; and as he was leaving through the same door, negotiating the bulky mirror, he crashed into the post and was injured.

Of course, whether a condition is actually open and obvious may well be open to debate. Generally speaking, a condition is open and obvious if a reasonably prudent person, exercising normal perception, intelligence, and judgment would recognize the condition, and the risk involved.  “Open-and obviousness” is a question not of an individual’s subjective view at the time of encountering the condition. Rather, it is to be determined by what a reasonably prudent person would perceive if confronted with the same condition.

What is “open and obvious” can depend upon the actual situation—that is, the manner in which the injury occurs.  Say a group of people have just rented a suite of rooms in a hotel, and two women are conversing in a bedroom as the bellman is carrying in the luggage.  The bellman sets down luggage so that it partially blocks the bedroom door.  One of the women turns to leave, trips over the luggage and breaks her wrist. It may be said that the luggage in the doorway would have been obvious to anyone who looked.  But it wasn’t obvious to the woman who fell over it.  Would the hotel liable?  Probably yes.

But even when a condition is open and obvious, a proprietor might still be held liable if it was reasonably foreseeable that that danger might cause injury, regardless of whether it is obvious.  Take, for example, a circumstance where the dangerous condition is obvious yet the customer has little choice but to encounter it. Perhaps the only pathway available to the customer requires a close encounter with a dangerous condition.

Natural Conditions

It has long been the law that a land owner is not liable for natural conditions that occur on his property: ponds, trees, cliffs, ice, snow, and the like.  Over time, however, this rule has seen some erosion.

Let’s say the place of injury is a golf course.  Golfing may be regarded as an “outdoorsy” activity, and the golf course a place close to Mother Nature.  Now on the golf course there is a tree —not a tree that has been planted, but one that is there naturally. Let’s say the tree has been struck by lightning, and one large limb is dangling precariously. Not only is the tree a creature of nature, but the lightning that struck it is a phenomenon of nature—so the owner of the golf course played absolutely no part in creating the hazardous condition.  On the other hand, golf courses are places where regular maintenance is both expected and routine.  So if the owner knew of the hanging limb and failed to take corrective action, he may well be liable to a golfer who is injured by the falling limb.

If you or a loved one has been injured by dangerous conditions on someone else’s property, contact San Diego slip and fall attorney George Charles Heppner at (888) 503-6473 for an evaluation of your case.