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OPEN AND OBVIOUS DEFENSE

The “open and obvious” defense is a method in which a defendant can defend against a premises liability claim brought by a plaintiff seeking compensation for his injuries. The open and obvious doctrine provides an exception to the premises liability laws which provide that land owner has a duty to protect invitees from any hazardous conditions on the property by either fixing the condition or warning the invitees that the condition exists, so they can protect themselves.

The open and obvious defense doctrine states that if a condition was open and obvious to a reasonable person when the plaintiff was injured, the defendant is not liable for failing to fix the condition or warn the plaintiff, because the plaintiff could have discovered and avoided the condition just as easily as the defendant could have warned the plaintiff. This defense was recently raised by Home Depot in a Florida Appellate decision.

In the case of Ramsey v. Home Depot USA, Inc. the plaintiff sued Home Depot over a wheel a parking lot wheel stop which the plaintiff tripped and fell. Home Depot asserted that the parking stop was in an open and obvious place and the thus the owner had not duty to warn the plaintiff. To combat Home Depot’s defense, the plaintiff’s expert testimony which tried to establish that the store could have used shorter wheel stops to eliminate risk of tripping and that placement of wheel stops in an area for disabled patrons made them inherently dangerous because they created a barrier to a flat and even walking surface.

The Home Depot countered by producing their own experts and moved the trial court for a dismissal of the case. The trial court agreed with the Home Depot and specifically their evidence which established that the defendant was in compliance with the ADA as well as state and local building codes. Additionally the defendant was able to get the plaintiff to admit she was not looking where she was walking at the time of the accident.

After the trial court dismissed the lawsuit the plaintiff appealed, but to no avail. The appellate court held that the failure to warn claim was barred as the parking stop was an open and obvious condition.

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