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A Beginners Guide to Overcoming the Open and Obvious Defense in Slip or Trip and Fall Cases in Minnesota

slip and fall graphicAs discussed in last week’s blog, there are several defenses that an at-fault party or their insurer (the insurance company) can assert in Minnesota slip/trip and fall cases. The most common of these is the open and obvious defense.  This is when the at-fault party asserts that the injured party should have observed or known of the danger and therefore should have avoided the condition or taken precautions in navigating it.

Thankfully there are ways for a Plaintiff to overcome this defense. Three of the most common rebuttals to this defense are: 1) that the dangerous condition was in fact not open and obvious but was instead hidden; 2) that while the dangerous condition was open and obvious it was unavoidable for the Plaintiff; or 3) that even if the danger was open and obvious, it was foreseeable to the at-fault party that someone could injure themselves on the dangerous condition.

Please continue to read below for a short description on each of these arguments.

HIDDEN

The best way to defeat the open and obvious defense is to argue that the danger was, in fact, not open and obvious. If the dangerous condition was not objectively noticeable then the open and obvious defense is without merit and will not bar the injured party’s claim. There are many examples of how a dangerous condition may become hidden.  For example, the danger may have been hidden because of poor lighting or some other substance had covered up the condition.

A very common cause of slip and fall accidents in Minnesota is the accumulation of ice in areas that people commonly pass through. When this instance arises, a Plaintiff can often argue that the ice was covered by a layer of snow or that running water was covering the ice.

UNAVOIDABLE

Another way to argue against an open and obvious defense is to admit that the danger was open and obvious but point out the fact that it was unavoidable for the Plaintiff to try and navigate the hazard. Consider the following hypotheticals:

Hypothetical #1: Person A is a tenant that lives in an apartment. As Person A is exiting the apartment she slips on the stairs due to an accumulation of ice. Also, consider that Person A saw the ice and knew the ice was present. Person A can argue that although she saw the ice, she had no other way to leave the building for work. With the stairs being the only exit from the building, the incident was therefore unavoidable.

Hypothetical #2: Person B uses a parking garage for work. One of the stairs in the stairwell is broken and Person B knows that the stair is broken. However, he is late for work and must use the stairs to exit the ramp. Person B can argue that he had to use the stairs to exit the ramp, as it was the only exit, and therefore the dangerous condition was unavoidable.

FORESEEABLE

Finally, a Plaintiff can argue that despite the open and obvious nature of a dangerous condition – the at-fault party should have foreseen that the condition would have injured a potential pedestrian.

Thus, the open and obvious nature of the condition does not defeat the underlying claim. Essentially, if an at-fault party can foresee that a potential pedestrian would be likely to navigate the area despite an open and obvious condition, then the at-fault party may still be held liable for damages caused by the dangerous condition.

How The Minnesota Slip and Fall Lawyers Can Help You

The skilled slip and fall attorneys at Sand Law concentrate a large portion of their practice on cases involving open and obvious defenses. Our personal injury lawyers handle slip and fall matters throughout Minnesota. With offices in St. Paul and White Bear Lake, we are conveniently located to serve your personal injury needs.

Please feel free to contact us for a free consultation where we can explain your rights and zealously advocate for you.