Here in West Virginia, 2015 has apparently been a productive year so far in terms of tort reform. One of the important changes lawmakers made was to restore the “open and obvious” doctrine, a previously abolished rule of premises liability law which held that a property owner may not be sued by if someone on their property is injured by an obvious hazard.
The open and obvious doctrine was established at common law, which is the body of case law recognized by state courts. For those unfamiliar with the term, common law is built up by means of legal precedents, or legal rules embedded in court cases which are binding in subsequent cases involving the same fact patterns.
When the open and obvious doctrine was abolished by the West Virginia Supreme Court in 2013, the new rule was that those who were injured by an obvious hazard had the ability to sue the property owner for damages. Juries were allowed to consider the obviousness of the hazard for purposes of calculating comparative negligence, which allowed for the possibility that the plaintiff could recover an amount of damages appropriate to the case.
The restoration of the open and obvious doctrine does away with that possibility and means that property owners have less to worry about, at least from a legal perspective, if an individual is harmed by an obviously dangerous condition on their property. As long as the property owner can prove than a reasonable person would have or could have known about the dangerous condition, the injured party is not allowed to seek damages from the property owner.
For businesses and owners of property which is routinely entered upon, there may technically not be a legal requirement to correct open and obvious hazards, but it is still a wise move to take steps to do so. In any premises liability case, but especially in cases involving hazardous conditions, it is important for the injured party to work closely with an experienced attorney to ensure their rights are protected.
Source: State Journal, “Tort reforms seen as mixed bag by some, historic by others,” Linda Harris, Mar. 21, 2015.