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West Virginia Legislature reinstitutes “open and obvious” doctrine


Premises liability is an area of law that is designed to reduce the risk of injury due to hazardous property.

Premises liability is an area of law that involves injuries that result when on another’s property. Examples can include a slip on a grocery store floor, trip on a sidewalk or even an injury on a playground.

West Virginia state law requires property owners remove hazards from their property to reduce the risk of these injuries. The expectation is dependent on the type of person that is on the property. Previously, visitors were broken into one of four categories: invitee, licensee, social guest or trespasser. The duty of care owed to the visitor depended on the category under which the visitor qualified. Today, there are only two categories: trespasser and non-trespasser. The West Virginia Supreme Court, in Mallet v. Pickens, abolished the four categories mentioned above, and held that “landowners or possessors now owe any non-trespassing entrant a duty of reasonable care under the circumstances.”

There are additional nuances to this area of law, but this piece will focus on obvious hazards on a piece of business property. A business owner generally has a duty to invitees to exercise ordinary care to keep and maintain premises in a reasonable, safe condition. In the past, there was an exception to this rule known as the “open and obvious” doctrine. A recent case brought this doctrine into question.

The case involved a man who fell down a flight of stairs at a parking structure. The property owner had recently removed the guardrails on the stairs for repair. When descending the stairs, the man fell and suffered a serious head injury. The man successfully argued that had guardrails been available he would have maintained his balance and not suffered the injury. The court in this case, Hersch v. E-T Enterprises, Ltd. P’ship., chose to abolish the previously used open and obvious rule. If the rule had held, the man would not have had recourse as the dangers of a stairway without guardrails was deemed obvious. Without this doctrine, the victim could hold the business owner liable for the costs resulting from the injuries.

How has the Legislature responded to the Court’s Hersch decision? The West Virginia Legislature chose to step in and overrule the Court’s decision in Hersch. A new code section was added which states “A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers.”

This new statute, in the wake of the Hersch decision, makes the Legislative intent very clear; to reaffirm and restore the “open and obvious” doctrine.

What does this mean for future premises liability cases in West Virginia? Injured persons and their counsel are wise to keep the open and obvious doctrine in mind when pursuing a premises liability case. If it is even arguable that a danger is “open and obvious” you can expect it to be raised as a defense.

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