Landowners have a legal duty to keep their premises safe for lawful entrants and can be sued over injuries caused by hazardous conditions. In such a lawsuit, the "open and obvious" defense can be raised. It asserts that when a hazard is clearly visible and should be recognized by a reasonable person, the injured party should have noticed and avoided it. Although the defense can be a formidable obstacle for an injured party to recover damages, there are ways to surmount it.

The open and obvious defense is rooted in common law. Connecticut follows the Restatement (Second) of Torts § 343A, which states: “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” An invitee is a person who enters or remains on land that is held open to the public or for a purpose related to business dealings with the land’s possessor.

For the defense to succeed, the danger must be clearly visible and recognizable to an average person. Examples include a large pothole in a well-lit parking lot, a wet floor with clear warning signs or a staircase without a handrail in plain view. 

However, even if a hazard is open and obvious, a property owner might still be liable if they should have anticipated that an invitee would be harmed despite the obviousness of the danger. If the property owner should have anticipated that the plaintiff would still encounter the danger despite its obviousness, liability may still be imposed. For example, if a store places a product display in a way that forces customers to walk through a hazardous area or If a landlord knows tenants must cross an icy walkway to exit their building

The "open and obvious" defense does not automatically bar recovery for plaintiffs. Connecticut follows a modified comparative negligence system. Under Connecticut General Statutes § 52-572h, a plaintiff can recover damages unless they are found to be more than 50 percent at fault. If a danger is open and obvious, a court may reduce the plaintiff’s recovery based on their own negligence in failing to avoid the hazard, rather than barring the claim entirely. 

If you are injured on someone else's property, a Connecticut personal injury attorney can analyze the facts, advise you of your right to financial compensation and take all legal steps needed to attain it.

Gesmonde, Pietrosimone & Sgrignari, L.L.C. in East Haven and Hamden litigates Connecticut cases arising from premises accidents. Please call 203-745-0942 or contact us online for a free initial consultation.