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West Virginia Restores Open and Obvious Doctrine to Premises Liability Law

At times, there is a tension in personal injury law between the negligence of one individual and the personal responsibility of the other. We can look at the first person’s actions and cite carelessness that caused an accident. But, on the other hand, we might see a victim who foolishly put himself in harm’s way. The court must assess all the facts and apply legal principles to decide whether liability lies with the defendant or the plaintiff. One principle that West Virginia courts employed for more than 100 years was the rule regarding “open and obvious” hazards in premises liability cases.

The “open and obvious doctrine” holds that a property owner is not responsible when a visitor on the property encounters an open, obvious and reasonably apparent danger, because the appearance of an obvious hazard gives notice to a reasonable person to proceed at his own peril. If that person chooses to ignore obvious danger, the fault lies not with the owner who failed to make the area safe, but with the visitor who assumed the risk.

However, the state Supreme Court abolished the open and obvious doctrine in a 2013 case, entitled Hersch v. E-T Enterprises, Ltd. et al. In that case, a shopper sustained injury due to a fall from a staircase that was missing a handrail, in violation of a city safety ordinance. The defendants asserted that the open and obvious doctrine barred a lawsuit, because the danger was readily apparent to anyone who used the staircase. The majority of the court disagreed, holding that “the fact that a hazard was open and obvious should not relieve the possessor of the premises of all possible duty with respect to the hazard.”

This ruling changed the law regarding open and obvious hazards from a question of the defendant’s duty to a question of the plaintiff’s contributory negligence. The plaintiff was not barred from bringing suit, but could have damages reduced if a jury found the plaintiff was negligent in taking on a known danger.

This ruling was controversial and prompted the state legislature to pass Senate Bill 13 early in 2015. The purpose of this bill, which Governor Tomblin signed into law, was to restore the open and obvious doctrine. Code of West Virginia §55-7-27 now reads in pertinent part:

(a) A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers.

As a result of this new law, property owners in West Virginia are only liable when a hazard that is not apparent to a guest but should have been known to the owner causes an injury.

If you suffered an injury due to a slip and fall on another person’s property and want to know your legal rights, schedule a free consultation at Prim Law Firm, PLLC. Call us at 304-721-4619 or contact our office online.

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