Slip and fall cases are met with certain common defenses. Chief among those is the open-and-obvious defense.
As 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 that:
- 1. the dangerous condition was in fact not open and obvious but was instead hidden.
- 2. while the dangerous condition was open and obvious it was unavoidable for the Plaintiff.
- 3. 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.
The Slip and Fall Conditions were 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. In retail spaces where spills may be common, proper signage warning of the wet floor is required. When a store fails to warn customers of a potential slipping hazard, they fail to meet the open and obvious claim.
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.
The Slip and Fall was 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.
The Slip and Fall was 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. Although many of our clients experience injuries, such as traumatic brain or spinal injuries, you don’t have to go after insurance companies alone. With offices in St. Paul, Minneapolis, White Bear Lake, and Woodbury, we are conveniently located to serve your personal injury needs.