Dealing With the “Open and Obvious” Defense in Premises Liability Cases

In New York, property owners bear a responsibility to ensure their premises are reasonably safe for visitors and to adequately warn of any potential hazards. Conversely, visitors are expected to exercise reasonable care while on the property. But what happens when an obvious danger exists on the property and someone is injured as a result?

Common hazards on properties that often lead to accidents include slippery or wet floors, malfunctioning escalators or elevators, broken stairs, missing handrails, uneven sidewalks, and areas under ongoing construction or repair. Each of these conditions poses a risk to visitors and can result in serious injury if not properly addressed or if warnings are not posted.

In lawsuits against property owners over injuries sustained on their premises, New York law acknowledges the “open and obvious” defense, in which the owner asserts that the condition leading to an accident was easily noticeable through ordinary observation. This defense attempts to shift a significant portion of the blame onto the injured party by arguing that the danger was so apparent that the visitor should have been aware and have taken precautions.

It's important to note, however, that the open and obvious defense only shields property owners from liability for failing to warn visitors about obvious dangers. They can still be held accountable in a premises liability case if they neglected to maintain the property in a reasonably safe condition. This distinction can become critical in the analysis of the owner’s and the victim’s comparative negligence.

Under New York comparative negligence law, if a jury determines that the injured party shares some fault for their injury — for instance, by not recognizing or avoiding a clearly visible hazard — the damages awarded may be reduced proportionately. Despite this, if the property owner's failure to keep the premises reasonably safe is deemed a partial cause of the accident, the owner may still be liable for a significant portion of the damages. For instance, if a jury finds $100,000 in damages and finds that the injured party was 30 percent responsible due to failing to notice the hazard, but that the owner was 70 percent at fault for not maintaining a safe property, the plaintiff’s award would be $70,000.

If you've suffered an injury on someone else's property anywhere in the New York metropolitan area, the attorneys at Rich & Rich, P.C. can advocate for the compensation you rightfully deserve. With offices in Manhattan and Long Island, our experienced legal team will provide a free consultation to discuss your case. Please call 917-746-3358 or contact us online to schedule an appointment today.