What is the “open and obvious” defense in Nevada injury law?
Nevada property owners claim the “open and obvious defense” whenever someone gets injured on their property from a hazardous condition that was so plainto see that any reasonable person would have takennotice and avoided it.
In most premises liability cases I see, property owners are not required to fix or warn about open and obvious hazards precisely because any “reasonable person” would steer clear of them.
Therefore if you bring a negligence lawsuit against a property owner for injuries sustained by open and obvious hazards on their premises, the property owner would argue that all negligence lies with you because:
the hazard was readily knowable, and
you were not being careful.
Ultimately, it is up for the court to decide whether a property condition qualifies and open and obvious.
Examples of open and obvious conditions
A pond on someone’s private property is an open and obvious hazard: It is so big that any reasonable person would see it and avoid it; therefore, the property owner does not need to post signs to warn others about it.
If you stand by the edge of the pond for a selfie and then fall in, you probably would not have a winnable personal injury case against the property owner: Since the pond was open and obvious, you should have known that standing near the edge would be risky.
Other examples of potential hazards that are open and obvious include:
I see slip-and-fall injuries from walkways, escalators, and staircases all the time, but property owners usually have no duty to warn people about them as long as they are in working order. This is because any reasonable person would notice something as open and obvious as a walkway, escalator, and staircase and then try to be careful using them.
Example: You are running through a hotel after drinking three beers when you suddenly come upon an escalator, lose your footing, and fall down. If you sue the hotel, they would argue that the escalator was an open and obvious hazard that any reasonable person would have noticed. Instead, they would argue you were at fault for running and being intoxicated.
In contrast, a spilled glass of water on a hotel lobby floor is usually not an open and obvious hazard since water is clear, and you might reasonably miss it. Therefore, the hotel would probably have a duty to clear the spill as soon as possible and to put up a “Warning: Wet Floor” sign in the meantime.
A pond is an example of an open and obvious hazard that does not typically require a warning.
Examples of open and obvious conditions with hidden hazards
Not all obvious hazards are the same, and some have dangerous conditions that are hidden. In these cases, property owners may have a duty to fix or warn against them. Examples include:
Moving walkways that are unusually bumpy
Escalators that have just been washed and are slippery
Staircases that are old with lopsided steps
It is not foreseeable to a reasonable person that walkways would be bumpy, or that escalators would be slippery, or that staircases would be uneven; therefore, property owners in these situations probably would not be able to claim the open and obvious defense if you injure yourself on them.
Instead, I would argue that these property owner would have the duty either to:
fix these dangerous conditions,
cordon them off, and/or
warn guests about them.
Can I still sue if I was injured by an open and obvious hazard?
Yes. Nevada’s modified comparative negligence laws permit you to recover money damages for any accident you were no more than 50% at fault for. So even if you were injured by an open and obvious hazard, we could still win a lawsuit against the property owner as long as the court finds you no more than half to blame.
Example: Your neighbor is doing construction on their driveway, which has a large hole in the ground. You are texting and walking down the driveway when you fall into the hole, sustaining $10,000 in damages.
You sue your neighbor for negligence, and your neighbor defends themself by arguing the hole was open and obvious. Ultimately, the court finds that you each was 50% to blame: You for texting and walking, and the neighbor for not cordoning off the hole. Therefore, you could receive 50% of your damages ($5,000, which is half of $10,000).
Whether a condition is open and obvious is often subjective. Evidence I rely on to prove that hazards are hidden include:
For more in-depth information on the “open and obvious” defense, refer to these scholarly articles:
Glaster v. Dollar Tree Stores, Inc. (2019) 441 P.3d 1090 (Jury Instruction: “If you find the placement of the u-boat cart created an unreasonably dangerous condition, then you must determine if the unreasonably dangerous condition was open and obvious. A person needs to be aware of their surroundings and exercise reasonable care to avoid an open and obvious condition. If you find the u-boat to be an open and obvious condition, you must decide whether Defendant breached its duty of care to allow the condition to exist and permitting Plaintiff to encounter the condition.”).
Moody v. Manny’s Auto Repair (1994) 110 Nev. 320(“[D]eterminations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances…[A]n owner or occupier of land should be held to the general duty of reasonable care when another is injured on that land. . . . [and] determinations of liability should primarily depend upon whether the owner or occupier acted reasonably under the circumstances.”).
Foster v. Costco Wholesale Corp. (2012) 128 Nev. 773 (there is a duty of reasonable care “to all entrants on the land (except for flagrant trespassers)…landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of dangerous conditions…the duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm…[T]raditionally, a landowner had no duty to protect entrants on the landowner’s property from open and obvious dangers. This court, along with the vast majority of jurisdictions, has since embraced an exception when the landowner should anticipate the harm despite the hazard’s open and obvious nature. By modifying the traditional rule, negligence laws throughout the country have progressed in favor of upholding the general duty of reasonable care … In recognition of the continuing development of the law governing landowner liability, we adopt the rule set forth in the Restatement (Third) of Torts: Physical and Emotional Harm section 51, and consequently, we conclude that a landowner owes a duty of reasonable care to entrants for risks that exist on the landowner’s property. In accordance with this position, we hold that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner.”)
FGA, Inc. v. Giglio (2012) 128 Nev. 271 (“[W]here an owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner could be held liable for injuries to an invitee if the plaintiff proves that the store owner failed to take all reasonable precautions necessary to protect invitees from these foreseeable dangerous conditions.”).
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.