What Is the Open and Obvious Defense in Tennessee?

The open and obvious defense is a specific legal strategy that has been applied to Tennessee premises liability cases for many years. Whenever someone becomes injured on someone else’s property, the property owner can use this defense to avoid responsibility for the dangerous conditions that allegedly caused the plaintiff’s injuries. Whenever these cases emerge, the question is usually asked: What is the open and obvious defense in Tennessee?

How the Open and Obvious Defense Works in Tennessee

The main focus for anyone who decides to use the open and obvious defense in Tennessee is to have larger discussions about foreseeable issues and personal responsibility. A defendant may not dispute that the hazard existed but will make the point that the danger that caused harm was “out in the open” and “obvious” in nature. They are implying that anyone who came across this specific hazard would easily recognize it existed and know to avoid it.

For example, assume someone entered a convenience store. As soon as they step foot inside, there is a large “wet floor” sign in plain sight, and it is bright yellow to catch attention. If someone still manages to slip and fall, the property owner may leverage the “open and obvious” defense position to suggest that the injured person should have seen the hazard. They argue that they should not be held liable for the individual’s inability to take their own personal precautions.

While taking this type of a defense position with a Nashville criminal attorney can be very effective, it does not automatically shield the property owner against all liability. The court will still need to investigate the matter. They will also need to compare the plaintiff’s personal actions with the state’s comparative fault rules.

The Role of Comparative Fault in Tennessee

Tennessee is one of many states across the country that operates under the system of comparative fault. This means in cases such as someone slipping on someone else’s floor, liability can be shared between the owner of the property and the individual who fell and experienced injuries. When the property owner decides to invoke the open and obvious defense, the court will begin to investigate every detail pertaining to how both parties acted in the situation.

Another example of this can be found in a classic grocery store scenario. Assume there was a spill in an aisle that needed to be cleaned up. If the employee who was made aware of the spill did not clean it up within a reasonable amount of time, there is the potential for them to be held partially liable for the damages caused if someone slips. This can be true regardless of how noticeable the spill is to any reasonable person.

Under Tennessee’s comparative fault law, if the court determines that the person who was injured was more than 50% at fault for their injuries, they may be prevented from recovering damages altogether. For example, if the spill was obvious and the employee had put up a large sign to warn of the hazard while they left to get cleaning supplies, this could increase the percentage of fault on the injured party.

What the Court Will Ask

Some of the most questions the court may ask to determine fault in these cases include:

• Was the hazard easily visible to the person who became injured?
• Did the injured party act with reasonable care to protect themself?
• Once the property owner was made aware of the hazard, did they take timely and appropriate actions to try and rectify the situation?

FAQs

Q: What Are the Main Limitations of the Open and Obvious Defense in Tennessee?

A: Even if it’s clear that a specific hazard was open and obvious, there are still scenarios where the property owner could be held accountable. This is true in scenarios where the court recognizes that no matter how obvious a hazard is, the property owner should still take responsibility. For example, if a hazard blocked a specific path to walk through and there was no other safe route to take, they could be held liable for any injuries that were caused.

Q: How Does an Open and Obvious Defense Impact Premise Liability Claims?

A: Open and obvious defenses can limit a plaintiff's ability to fully recover damages in premises liability cases, especially when the owner of a property argues that the dangerous condition was so obvious that anyone would know to avoid it. When this position is employed in a defense case, it attempts to shift the responsibility toward the injured party for failing to either recognize the hazard or act with reasonable caution.

Q: Does the Open and Obvious Defense Apply to All Types of Hazards?

A: No, not every case is a good fit for the open and obvious defense. A defense attorney will only suggest this strategy if the alleged hazard was visible and easily avoidable. This strategy may not work as well when the danger is hidden and less predictable. For example, an uneven sidewalk may work for an open and obvious case, but a sudden structural collapse would not. Working with a Nashville criminal lawyer can help determine the most appropriate strategy.

Q: How Can I Defend Myself When My Open and Obvious Defense Position Is Challenged?

A: The key to strengthening your open and obvious defense position when challenged is to provide clear evidence that the hazard was visible. You want to argue that any reasonable person walking by would have been able to identify and avoid the condition. Providing photographs of the scene or even surveillance footage of other patrons avoiding the condition can be helpful to your defense strategy.

Contact McNally Law Today

If someone has recently injured themselves on your property, you need to hire an attorney who understands the nuances of defending these cases. Whether or not you are certain an open and obvious defense would apply in your situation, don’t gamble choosing a defense on your own. Our legal team can investigate the details of your case to ensure the optimal legal strategy is selected to defend your rights. Contact us today to get the process started.