It can be difficult to prove your right to compensation for your injuries in a premises liability accident. You must show that the business or property owner knew or should have known of the dangerous condition to hold them liable.
Your claim can be even more complicated if the insurance company tries to deny your claim or pay you less than you deserve in your settlement—which is common in these types of cases. The insurance company may try to do this by arguing that the hazardous condition was “open and obvious.”
What Is the Open and Obvious Defense?
If a dangerous condition is open and obvious, this means that the victim should have seen the hazard and avoided it. When raising this defense, the insurance company would be claiming that the victim was wholly or partially negligent in causing their injuries. Virginia follows a harsh contributory negligence rule that prohibits anyone from obtaining compensation if they were at fault—even just one percent to blame.
Whether a condition is open and obvious will depend on the circumstances surrounding the accident and what a reasonable person would do. The court would consider the dangerous condition and whether a person of reasonable intelligence would have noticed it and avoided it.
Even if the insurance company successfully argues that the condition was open and obvious, there may be exceptions where this defense would not apply.
Exceptions to the Open and Obvious Defense
- Negligence per se. In some cases, the business or property owner could be automatically negligent under the negligence per se doctrine. This exception would often apply in premises liability cases if the owner violated a building code.
- Distraction. If the owner should expect that individuals would be too distracted to discover an obvious danger, they could still face liability for a victim’s injuries.
- Expectation of harm. The owner can also be held responsible if they should reasonably expect that an open and obvious hazard could harm someone. In this situation, they would be required to promptly correct the problem or post a sign warning of the danger.
If you were injured in a premises liability accident and want to obtain all the compensation you are entitled to under Virginia law, you need the help of an experienced premises liability attorney. To find out how we can assist you, contact us online or call our Norfolk office at 877-960-3441 to schedule a free, no-obligation initial consultation.