Instructing Potential Jurors about Open and Obvious Conditions
An “open and obvious” condition is not a total bar to recovery in premises liability cases because to hold so would interfere with the purpose of comparative negligence statute. Indeed, the “open and obvious” defense is in fact the dfense of assumption of the risk.
The law notwithstanding, this is the argument that causes me the most angst. On one hand, we must show that the condition was known, or should have been known, by the defendant. On the other hand, if the condition was so obvious then jurors may want to hold your client at fault. Here are my suggestions:
- Focus on knowledge and appreciation of the danger. It is the danger itself, not just the condition, that must be obvious before one can be comparatively negligent. When selecting jurors in a premises liability case, be wary of jurors who are quick to state that a condition is obviously dangerous. However, this may not be a sure preemption since the juror may feel that, due to the condition’s obviousness, the owner should have fixed it or that it constitutes something “unreasonable dangerous” (see discussion below).
- Focus on invited distractions. Your client is only held to the standard of a reasonable person under the circumstances. Focus on all of the advertising, products, other customers, goods, and signs over which the defendant has control. Ask if, given all of these distractions, it is reasonable that a person might not recognize a defect.
- Focus on the importance of the trip. “Unless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use… the landlord is subject to liability to him notwithstanding his knowledge of the existence of this condition.” This is really just common sense and it works well where the trip is mandatory – an icy walkway ourside one’s door, for example.
What is Considered “Unreasonably Dangerous”?
When the condition on the premises is unreasonably dangerous, the duty imposed on the possessor is greater than in an ordinary case. An “unreasonably dangerous” condition is one that cannot be encountered with reasonable safety, even if the danger is known and appreciated. The possessor cannot escape liability merely by posting warning signs, but must remove or ameliorate the danger or take other reasonable steps to protect the invitee.
When determining whether a condition constitutes an unreasonably dangerous condition, consideration must be given to the type of people that might be affected by the actor’s conduct, including children and the aged or infirm. Here are some tips:
- Focus on why this is a good rule. Think of some corollaries. Make the condition a public nuisance, dangerous to all.
- Focus on the fact that warnings or actual knowledge don’t matter. Ask jurors whether they agree or disagree with this rule. Some will disagree. Before you move to strike them, see which other jurors agree with them. Once you have identified all who disagree, move to strike the lot. Remember: if you slaughter the lamb first, fewer will be willing to come out of the woods. My personal record is striking three in one motion using this technique.
- Focus on why this type of condition was more dangerous for your particular plaintiff. Age, eyesight, and lighting are all good grounds. Again, the condition may be unreasonably dangerous only for some.
- Ask how the condition might have been remedied. You might be surprised what you hear. This lends insight not only into their belief as to the extent, or lack thereof, of expected remedial actions, but might also provide examples you could use later on in trial.
Above all else, remember this: find a way to explore issues applicable to your case, keeping in mind jurors’ natural biases.