What is the "open and obvious danger" rule?

On behalf of Aiken and Aiken P.C. Personal Injury Attorneys posted in Premises Liability, on Thursday, June 25, 2015

The general rule of premises liability in the state of Massachusetts is that a property owner or occupier owes a duty to others on the property to keep the property in a reasonably safe condition, which includes a duty to warn of any unreasonable dangers that the owner or occupier knows of. This duty of care does not, however, completely absolve visitors on the property from exercising their own duty of care when it comes to exercising reasonable discretion in recognizing and avoiding dangerous conditions on the property that would be obvious to a reasonable person.But what would constitute an open and obvious danger on the property of another, and does the abolition of the doctrine of assumption of the risk in Massachusetts have any effect on the plaintiff’s duty of care to avoid open and obvious dangers? The answer to what represents an open and obvious danger is based in common sense, which would in a court case be a question for the jury to decide. When it comes to diving into a swimming pool at night, for example, a person of ordinary intelligence would recognize that doing so in the shallow end of the pool would pose an open and obvious danger, and under Massachusetts law the owner or occupier would owe no duty to warn the visitor of something like that.On the other hand, because Massachusetts no longer uses the doctrine of a plaintiff’s assumption of risk in negligence cases, can a plaintiff argue that the owner or occupier would still in fact owe a duty to warn or to safeguard others when it came to our swimming pool example? This is a question that the Massachusetts Supreme Court has considered, and their answer is, “No.”Even though assumption of the risk is no longer a defense that defendants can use to claim that the plaintiff’s failure to exercise reasonable care should preclude liability, when it comes to premises liability the open and obvious danger in negating the defendant’s duty of care to the plaintiff still remains. When you go onto the property of another, you must still exercise reasonable prudence when it comes to avoiding risks that would be obvious to a reasonable person standing in your shoes.