What is an open and obvious risk in a slip and fall claim?

Slip and fall cases will usually involve some degree of negligence on the part of the property owner. If the owner knew or should have known about a defect on the property or did not warn visitors of the defect, the owner can be held responsible for the injuries the defect causes. However, there is an exception to this rule: the “open and obvious” doctrine. The open and obvious rule in slip and falls

Owners May Not Be Responsible for an Open and Obvious Risk

Rhode Island courts have held that property owners are not responsible for warning visitors of any open and obvious hazard on the premises that could cause injury. The theory is that the risk is so obvious, a reasonable and prudent person would have taken steps to avoid it, making the victim the negligent party. In an “open and obvious” defense, the property owner may accept that the open condition caused injury, and even that he failed to warn about the condition—but may not agree as to fault.

In most cases, recovery for an open and obvious risk case will depend on:

  • Negligence. All premises liability cases are decided based on which party was negligent. Failure to warn of a dangerous condition or failure to fix the condition are types of negligence that can be attributed to the property owner. On the other hand, a jury may find a victim to be negligent if he should have seen the hazard and realized it was dangerous but did not try to avoid it.
  • The nature of the condition. In order for the open and obvious doctrine to apply, the defect must be large, plainly visible, unobstructed, or otherwise easily identified. Types of open defects might include construction on the property, rolls of new carpeting, or piles of snow.
  • Evidence of the risk. The burden is on the victim to provide evidence of the dangerous condition. However, if the victim does not take photographs at the scene, the property owner may make repairs while the victim is recovering, making the case more complicated.
  • Degree of fault. Even if the condition is ruled open and obvious, Rhode Island injury laws allow victims to recover damages even if they are mostly at fault—but the amount of damages will be limited by the victim’s percentage of fault.

If you have been injured in a slip and fall accident, the attorneys at Kirshenbaum & Kirshenbaum offer free initial consultations for injury victims and do not charge for our services until your case is resolved. Contact us today via our online form to schedule your initial consultation with a personal injury lawyer.