Re-Examining the “Open and Obvious” Defense in California Premises Liability Cases

California premises liability law has long recognized the “open and obvious” doctrine: a landowner generally has no duty to warn against conditions that are so apparent a reasonable person would be expected to notice and avoid them. However, recent appellate opinions and jury verdicts suggest courts are increasingly reluctant to allow property owners to rely on this defense at the summary judgment stage, leaving more cases to be decided by juries.

The Traditional Rule
Historically, courts held that property owners were not liable for injuries caused by conditions that were readily apparent. The rationale was straightforward—if a hazard is obvious to any reasonable person, then landowners should not be expected to warn against it, nor should invitees be rewarded for failing to exercise due care.

The Modern Shift
In recent years, however, California courts have emphasized that the “open and obvious” doctrine does not eliminate the duty of care but instead goes to the issue of breach and comparative fault. In Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal. App. 5th 438, the court held that even an obvious condition could be dangerous if it presented a foreseeable risk of harm, and that landowners may still be liable if they should have anticipated the danger despite its obviousness.

This reasoning has allowed plaintiffs’ counsel to defeat summary judgment in cases involving trip hazards, wet floors, or poorly lit conditions, arguing that property owners must take reasonable steps to mitigate risks even when hazards are apparent.

Implications for Property Owners and Insurers
The shift has significant consequences for businesses, retailers, and commercial landlords:
- Fewer early dismissals: Courts are increasingly reluctant to find as a matter of law that a condition was open and obvious, pushing more cases to jury trial.
- Expanded duty of care: Even where hazards are visible, property owners may be expected to correct them if it is foreseeable that invitees could still be injured.
- Increased litigation costs: With fewer opportunities for summary judgment, defense costs rise, and insurers may face greater exposure.

Defense Strategies Moving Forward
To counter this trend, defense counsel should focus on:
- Detailed incident documentation to show that plaintiffs disregarded readily apparent dangers.
- Use of experts in human factors or safety engineering to establish that the condition was within normal expectations.
- Comparative fault arguments that emphasize plaintiff responsibility where hazards were in plain view.
- Early evaluation of settlement exposure given the increased difficulty of disposing of cases pre-trial.

Conclusion
The erosion of the “open and obvious” defense represents a growing challenge for defendants in California premises liability cases. As courts continue to frame the doctrine as a question of breach rather than duty, juries will increasingly decide whether obvious hazards should still have been remedied. Property owners and insurers must adjust expectations accordingly and prepare for high