Premises Liability: Open and Obvious Danger

To establish a negligence case, the Plaintiff must show that the Defendant owed him or her a duty, that the Defendant breached that duty, and that the Defendant’s breach was the proximate cause of any injury or harm actually suffered by the Plaintiff. Generally what, if any, duty is owed is a question of law to be determined by the Court.

In the past, the duty of the law assigned to a possessor of land depended on the classification given the injured party, i.e., trespasser, license or invitee. Generally, the highest standard of care was owed to an invitee, a lower standard of care was owed a licensee, and a minimum standard of care was owed to a trespasser.

The Nevada Supreme Court, in two relatively recent divisions, abolished the distinction made between the various categories of injured parties in determining a landowner’s liability for injuries sustained on the landowner’s premises. In quoting Sargent v. Ross, 308 A.2d 528, 534 (1973), the Nevada Supreme Court stated:

“Henceforth landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm. A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. We think this basic principle of responsibility for landlords as for others ‘best expresses the principles of justice and reasonableness upon which our law of torts is founded.’ The questions of control, hidden defects and common or public use, which formerly had to be establishes as a prerequisite to even considering the negligence of a landlord, will now be relevant only inasmuch as they bear on the basic tort issues such as the forseeability and unreasonableness of the particular risk of harm.”

Moody, 871 P.2d at 941.

Moody v. Manny’s Auto Repair, 110 Nev. 320, 871 P.2d 935 (1994); Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290 (1985).

Thus, a landowner must act “reasonably” under the circumstances. Obviously, the relationship between a landowner and the injured party will very likely play an important factor in determining if the landowner’s conduct, or lack thereof, was reasonable. For example, a business owner will likely owe a higher duty to provide the premises in a safe condition to a business patron than the owner would owe to a burglar who slipped and fell while loading his basket after business hours.

The duty of a landowner to keep the premises in a reasonably safe condition is usually decreased when it comes to dangers which were open and obvious and which were known to the injured claimant. However, the “open and obvious danger” defense provides a complete bar to recovery only if it is found that the negligence of the claimant in encountering the danger exceeds the negligence of the occupier of land in allowing the danger to remain on the land. Thus, if it is found that the claimant is 51% at fault for the injury, the claimant is 49% at fault for the injury, and the possessor of the land is 51% at fault for allowing the danger to remain, the claimant will recover 51% of his or her damages from the possessor.

The following Nevada Supreme Court decisions discuss various situations in which occupiers of land were or were not found liable for injuries sustained on their land. A review of these cases should help the reader understand some of the key factors the Court considers in determining whether a land occupier acts “reasonably” and whether a danger is “open and obvious.”

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