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Historically, under the common law of premises liability, if a person was injured due to a dangerous condition on the property which the injured person was, or should have been, aware of, the injured person was viewed as being negligent in failing to avoid the danger, which conduct was referred to as "contributory negligence." The common law then provided that if a plaintiff was at all contributorily negligent, he or she may not recover any damages from the property owner, regardless of the relative degrees of fault. For example, if the plaintiff was only one percent responsible for his or her injuries, and the defendant was 99% at fault for those injuries, the plaintiff could still recover no damages from the defendant.

In more recent times, the courts and legislatures have recognized the unfairness of the doctrine of contributory negligence, and have instead adopted the law of comparative negligence--the injured party's negligence is compared to the defendant's negligence, and the plaintiff is then allowed to recover the percentage of his or her damages that were caused by the negligence of the defendant. For example, if the plaintiff is found to be 10% at fault for his or her injuries and the defendant is found to be 90% at fault for the injuries, then the defendant will only be held liable for 90% of the damages.

Unfortunately, some courts have resurrected the discredited and outdated legal principle of contributory negligence in the context of premises liability claims by adopting the "open and obvious" legal doctrine.

The "open and obvious" doctrine provides that, if it is shown that the dangerous condition on the property was "open and obvious," meaning that the injured party could and should have seen it, then the property owner owed no duty to the plaintiff, which meant that the injured plaintiff may not recover any damages. This, of course, is the essence of the legal doctrine of contributory negligence - if the plaintiff is at all at fault, he or she cannot make any recovery, regardless whether the plaintiff's negligence in encountering the open and obvious danger, or the property owner's negligence in failing to remedy that dangerous condition, was greater.

The Supreme Court of Ohio, unfortunately, in Armstrong v. Best Buy Co., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, adopted the open and obvious defense and premises liability cases.

Other states, however, such as West Virginia, have recently reexamined the open and obvious doctrine and have noted that the modern trend is to abolish the open and obvious doctrine, and have, therefore, rejected it. As held by the Supreme Court of West Virginia, in Hersh v. E-T Enters., P'ship, 752 S.E.2d 336, 2013 W. Va. LEXIS 1271, 2013 WL 6050953 (W. Va. Nov. 12, 2013) , the "open and obvious" defense is simply the reincarnation of the rejected legal doctrine of contributory negligence in a different guise.

Even in those states which have adopted the "open and obvious" defense, there are many exceptions to it. For example, some courts hold that if the existence of the dangerous condition on the property was in violation of an ordinance or statute, the open and obvious doctrine does not apply. Similarly, if the open and obvious danger was created by a third party, that is, someone other than the premises owner, it may be possible to bring a claim against the third-party for any injury caused by that dangerous condition which the third-party created, and the third-party, because it is not the owner of the property, is not entitled to the defense of "open and obvious" dangerous.

If you have been injured on the premises of another party by a condition which can be described as "open and obvious," you should consult with an experienced attorney to determine if you may still be able to obtain any compensation for your injuries.

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