The doctrine of “open and obvious” was a hallmark of premises liability litigation for years. Essentially, it shielded landowners from responsibility when dangers on their property were obvious enough that an invitee should reasonably be expected to notice and avoid them. With Lugo v. Ameritech Corp, Inc. serving as the guiding precedent, the “open and obvious” clause was a potent defense against negligence claims. However, the landscape changed dramatically with the ruling in Kandil-Elsayed v. F&E Oil, Inc., which upended the previously established framework.

Lugo vs. The New Perspective

Under Lugo, if a risk was “open and obvious,” a landowner generally owed no duty of care to protect invitees from such a risk, unless the risk possessed “special aspects”. These special aspects included being “effectively unavoidable” or posing a significant risk of severe injury or death. This approach allowed many cases to be dismissed or summarily judged based on the obviousness of the danger.

Kandil-Elsayed, however, shifted the focus. It proclaimed that landowners, in general, have a duty to shield invitees from unreasonable dangers, irrespective of the risk’s “open and obvious” nature. The onus now falls on the jury or factfinder to evaluate the openness and obviousness of the danger when determining if the defendant has breached their duty and when assessing the plaintiff’s comparative negligence.

Implications for Premises Liability Cases

The practical implications of the shift are profound. Fewer negligence lawsuits rooted in premises liability will be dismissed out of hand due to the “open and obvious” defense. This means a greater number of cases will go to trial, placing the spotlight on the comparative negligence of all involved parties. In situations where a risk is so glaringly obvious that anyone could and should avoid it, the plaintiff’s negligence could be deemed higher than the defendant’s, possibly leading to no liability. Conversely, if a danger, even if “open and obvious”, is effectively inescapable, the landowner could be found more at fault than the plaintiff.

The specifics of the Kandil-Elsayed case underscore this new approach. The plaintiff’s slip and fall on snow and ice previously could have been easily dismissed under the Lugo framework because of the overt nature of the risk and the existence of alternative options (e.g., the plaintiff choosing a different gas station). However, under the new paradigm, the focus shifts to whether the defendant exercised reasonable care in maintaining their property, whether they should have anticipated harm despite the risk’s openness, and the exact circumstances around the accident.

The Kandil-Elsayed verdict transforms the premises liability landscape, emphasizing the importance of due diligence by landowners. The “open and obvious” defense, while still relevant, no longer acts as an impenetrable shield in negligence cases. Instead, it becomes one of several factors a jury will consider.

Landowners must be more proactive in mitigating potential risks, as the responsibility to protect invitees has been underscored. Plaintiffs must also be wary, as their actions and choices will be scrutinized for comparative negligence.

The scales of justice have shifted, and all parties must adjust accordingly.