Overcoming an ‘Open and Obvious’ Argument to Succeed in Your Massachusetts Trip-and-Fall Case

When you are injured in a trip-and-fall case, there are several hurdles you will necessarily have to clear. There are also some additional pitfalls that you may encounter depending on the specifics of your case. One of those potential pitfalls is the “open and obvious” rule, which says that, if a hazard is open and obvious, a property owner is not obligated to fix it or post warnings about it; the property owner or possessor has no legal obligation to do anything about an open and obvious hazard. Fortunately, there are many ways to counter a defense argument that a hazard was open and obvious. To make sure that you are prepared for everything that may come your way in your premises liability case, be sure to retain the services of a skilled Massachusetts premises liability attorney.

One case that showed how it is possible to overcome an “open and obvious” argument was an accident that occurred at a Watertown discount retail store. Jean was walking toward the entrance of the store when she tripped and fell, suffering significant injuries. It was not raining, and the area was not wet at that time.

The customer tripped along a curb area in front of the store, which she alleged was unsafe. Specifically, she presented a negligence lawsuit that argued that the curb was dangerous and defective and that the store either knew or should have known that the curb was dangerous and defective.

The time during which parties make motions for summary judgment is an important crossroads point of any case. These requests are very important because, if successful, they can end the case (or end the liability phase of a case) before it even gets to a full trial.

One of the things that can play an important role on your side in an “open and obvious” argument is that little word “and.” Even if a hazard is out in the open, there are many reasons why it might not truly be obvious. For example, in 2008, the Appeals Court ruled that a sunken living room was not obvious “as a matter of law” in a woman’s fall case. Given the way the home was tiled (using the exact same tile in the living room and the adjacent hallway), along with the way the area was lit by the home’s windows and skylight, a reasonable jury could conclude that the hazard was not obvious.

That “reasonable” standard is the key. If a reasonable jury could decide that a hazard wasn’t obvious, the defense isn’t entitled to summary judgment, and you are entitled to go forward with your case. That was the basis for allowing Jean to continue with her premises liability action. Reasonable fact-finders could conceivably decide that the curb hazard was not obvious. This fact was further bolstered by Jean’s evidence that several people had previously tripped along the curb, but the store had done nothing about it.

Make sure that you are equipped with everything you need to succeed in your trip-and-fall case. That includes skilled representation. Experienced Plymouth County premises liability lawyer Michael S. Mehrmann has vigorously and effectively represented injured people from across Plymouth County, including in Kingston, Plymouth, Marshfield, Hanson, Carver, Pembroke, and Duxbury. To find out more about how this office can assist you, call (781) 585-3911 or contact us online.