What is the “open and obvious” defense in Nevada injury cases?
In Nevada premises liability laws, the “open and obvious defense” applies when a hazardous condition on one’s property is so plainto see that any reasonable person would notice and avoid the hazard. Therefore, a property owner is not liable for failing to fix or warn about the condition. In effect, the property owner would argue that the hazard was readily knowable and that therefore the fault lies with the victim for not being careful enough around the hazard.
Examples of open and obvious conditions
A spilled glass of water on a hotel lobby floor would probably not be an obvious hazard since water is clear, and other patrons 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.
But a pond on someone’s private property is an obvious hazard: It is so big that any reasonable person would see it, and the property owner does not need to post signs to warn friends about it. If a guest stands by the edge of the pond for a selfie, and then falls in, the guest probably would not have a winnable negligence case against the property owner: Since the pond was” open and obvious,” the guest should have known that standing near the edge would be risky.
Other examples of potential hazards that are obvious include:
While people can and do sustain injuries from walkways, escalators, and staircases all the time, property owners usually have no duty to warn people about them. 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. So if someone gets injured on a functional walkway, escalator, or staircase by their own fault (such as by running or being drunk), then the property owner can claim the “open and obvious” defense.
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 warn against them. Examples include:
Moving walkways that are unusually bumpy
Escalators with have just been washed and are slippery
Staircases that are old with lopsided steps
It is not foreseeable that walkways would be bumpy, or that escalators would be slippery, or that staircases would be uneven; therefore, property owners In these situations arguably would not be able to claim “open and obvious conditions” as a defense if someone injures him/herself. Instead, they may have the duty either to fix these dangerous conditions, cordon them off, and/or warn guests about them.
See Moody v. Manny’s Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) (“[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.”).
See Foster v. Costco Wholesale Corp., 128 Nev. 773, 291 P. 3d 150 (Nev. 2012) (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.”)
See FGA, Inc. v. Giglio, 128 Nev. 271, 278 P.3d 490 (2012) (“[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.