Can a Landlord Be Liable for Injuries Due to an “Open and Obvious” Hazard?

New Jersey premises liability law holds a landlord accountable when a hazard the landlord knew or should have known about causes injury to a visitor. However, a major requirement is that the hazard be hidden or at least not obvious to the visitor. The logic behind this rule is that the visitor must also be reasonably alert and take responsibility for his own safety. If a hazard is “open and obvious” to the visitor, he or she should prudently avoid the hazard. If the visitor chooses to proceed and “take on” the obvious hazard, he invokes the doctrine of assumption of risk, which shifts responsibility for an injury from the landlord to the visitor, or at least raises the question of comparative negligence.

New Jersey courts have upheld the open and obvious defense in numerous cases, granting summary motion to the defendant:

  • Lokar v. Church of the Sacred Heart, 24 N.J. 549 (1957) — Here, the plaintiff was suing a church after tripping over a chain that cordoned off a driveway after a passerby caused it to swing against the plaintiff’s ankle. The court reasoned the chain was fully visible to the plaintiff.
  • Jimenez v. Applebee’s Neighborhood Grill & Bar, No. A-2247-13T2, 2015 N.J. Super. Unpub. LEXIS 430 (App. Div. Mar. 4, 2015) — In this case, the court granted summary judgment for the defendant restauranteur, recognizing that a customer should clearly see the risk that a sizzling fajita might spit hot grease. The fact that the customer was bowing his head to say grace before eating did not earn him an indulgence.
  • Cunningham v. Briarwood Care & Rehab. Ctr., Inc., No. A-1489-14T2, 2016 N.J. Super. Unpub. LEXIS 566 (App. Div. Mar. 15, 2016) — Although the mattress which a visitor to a nursing facility tripped over was certainly out of place, the court granted summary judgment for the defendant because the visitor had already seen the mattress in the same spot, making the hazard open and obvious.

But are there any circumstances that might allow a visitor to sue for injuries caused by an open and obvious hazard? There are four common situations where open and obvious might not be a solid defense:

  • Child plaintiff — If the defendant has what the law calls an “attractive nuisance” on the property, or has another reason to believe children might trespass, he has a duty to make his premises safe even from open and obvious hazards. The reason for this rule is that children are less likely to recognize the danger.
  • Foreseeable injury — If the facts indicate that a reasonable landlord would have recognized that the open and obvious hazard was nevertheless likely to cause injury to someone, he has a duty to address the hazard.
  • Distraction — If the hazard exists in an environment where a visitor, although having notice of the hazard, is likely to have his mind taken away from the hazard at an inopportune moment, the hazard may lose its open and obvious quality.
  • No reasonable alternative — The basis of the open and obvious defense is the assumption that a reasonably prudent visitor would choose not to encounter the hazard. However, if the visitor has no choice but to continue on his way past the hazard, the element of choice is removed.

As you can see, a premises liability claim is very fact specific. A plaintiff who is able to take the facts and construct a persuasive narrative may be able to overcome a defendant’s assertion that the hazard at the center of the case was open and obvious.

Brach Eichler Trial Lawyers represents victims of premises liability accidents throughout New Jersey. To speak to an experienced personal injury attorney at our firm, call us at 973-364-8300 or contact us online to schedule a free consultation.


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