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The Open and Obvious Doctrine in Slip and Fall Accidents


When someone falls, the first question that others may ask is whether they could have or should have seen the object that they fell on or which caused the fall. This is a natural question to ask. Legally, it can be a crucial question that can make or break a lawsuit for injuries that occur as a result of a fall.

A Victim’s Responsibility

In any type of negligence case, a jury is allowed to ask whether the victim could have or should have done something to avoid the accident. The law assumes that we all have some responsibility for our own safety and to look out for ourselves.

When a victim does not take precautions for his or her own safety, a jury can punish a victim by finding the victim liable to some extent for his or her own injuries. For example, if someone fell on a raised curb, a jury might find the victim 30% responsible for his fall for failing to see the curb. This means that the victim could not recover 30% of the ultimate jury verdict.

The Open and Obvious Doctrine

The open and obvious doctrine says that people have the responsibility to observe, to the extent possible, their own surroundings and to avoid dangerous conditions that can be readily observed. Conditions that are observable are called open and obvious conditions.

An open and obvious condition depends on the facts of a case. For example, clear liquid on a floor may not be open and obvious, being transparent or translucent. A colored liquid may be open and obvious. A raised curb that is the same color as the ground may not be open and obvious.

The Obligation to Fix or Repair

If a condition is blatantly obvious, a property owner does not have a legal obligation to fix or repair the condition, only to warn others of its existence. This is why a property owner may be allowed to leave a spill on the floor, so long as there are cones and clear signage warning people of a slippery floor. This is also why a business owner does not have to correct permanently open and obvious conditions, such as a cement parking space curb.

Circumstances can also dictate what is open and obvious. A large cardboard box on the ground may be plainly obvious. However, if that box were in an aisle of a grocery store, where people are naturally expected to be looking up at shelves and not on the ground, (especially where the store places an ad or other display designed to get a shopper’s attention) it may not be obvious.

In some cases, the condition has been fixed or cleaned, and there is no way to tell if it was ever open and obvious. Records, pictures, and accident reports can all be helpful in determining whether a victim could have or should have seen and avoided a dangerous condition.

Make sure that you understand the defenses that the insurance companies will use against you in court. Contact the Miami personal injury attorneys at Jacobs Legal today if you are injured in any kind of accident.


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