Premises liability law requires landlords to make their grounds reasonably safe for visitors by taking steps to discover unsafe conditions and either remove them or provide adequate warning about them. But what happens when a landlord knows a hazard exists, but does little or nothing to remediate the situation because the hazard is readily apparent? Is a landlord blameless when he relies on a visitor’s good sense to avoid a danger that is “open and obvious”? In many cases, the answer is yes, which means an injured plaintiff cannot recover damages.
Take, for example, the case of the sizzling skillet. When a customer bowed his head over the hot plate to pray before eating, grease from his steak fajita popped up and burned his face. A New Jersey appellate judge ruled the hot skillet was an “open and obvious” danger, so Applebee’s had no duty to warn the customer against lowering his face over it.
In premises liability cases where the landlord offers an “open and obvious” defense, the court must examine the facts to answer the following questions:
- Was the hazard, in fact, obvious? Here, the court applies a reasonable person standard. Would a reasonably attentive person notice the hazard and understand the danger? For example, if a staircase had no hand rail, a person reaching out for support would know immediately that the rail was missing. However, if the rail was only loose, the danger of the rail giving way might not be readily apparent.
- Was the situation one where distraction was foreseeable? As a general rule, a hazard in a busy area where many things are going on must be more obvious than a similar hazard in a quiet and subdued environment. Courts have held that distractions that take a visitor’s attention away from an open and obvious hazard can render the hazard hidden, making the landlord liable. Courts must also ask whether a visitor who has observed a hazard previously is at fault for not remembering the hazard existed.
- Was the injured party unreasonable in confronting the hazard? Generally, a person who is aware of a hazard and has the capacity to understand the danger assumes the risk by proceeding. However, in situations where there is no reasonable alternative path, courts have determined the visitor had no choice but to take on the hazard. In such a case, the visitor’s proceeding despite the hazard is not considered voluntary, so there is no assumption of risk on the visitor’s part.
Premises liability cases often involve competing interpretations of numerous facts and circumstances. It is an attorney’s job to make his client’s behavior seem reasonable under the totality of the circumstances and to show how the opposing party was unreasonable. Injured plaintiffs only have to prove their case by a preponderance of the evidence, but convincing a judge or jury can still be a formidable task.
If you are injured by the unsafe condition of someone’s property in Bergen County or anywhere in New Jersey, consult an experienced attorney at Seigel Law as soon as possible. Contact us online or call 201.444.4000 today for a free case evaluation.