Wheelchair-Bound Plaintiff’s Case Dismissed on Open and Obvious Defense

Analysis under the open and obvious defense is an objective one. Plaintiffs routinely argue that the defense is not applicable to their claim because they were somehow different than the average person (e.g., blind, in a wheelchair, using a cane, etc.). Saban reminds us that the proper analysis focuses on the defect and the average person, and not on whatever may have been “not average” of a particular claimant.

Often, even a “not average” plaintiff attempts to cast himself as an average person who did not discover the defect and, therefore, the defect was not open and obvious. In addition to the logical fallacy, this argument is easily overcome when, like here, Plaintiff’s detailed testimony regarding the size, depth, and location of the defect permitted the trial and appellate courts no other option than to find the defect open and obvious.

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