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Open and Obvious Doctrine Presents a Low Bar “Ordinary Intelligence.”

Premises Liability / August 25, 2020

In the last year, the Court of Appeals has more frequently overturned dismissals based on the open and obvious doctrine. The Court increasingly holds that there is a question of material fact regarding what an average person would have known about the dangerous condition.

In Michael McGilvery v Busch’s, Inc., there was evidence of dim light and peeling paint on the floor. A reasonable jury could disagree on whether a reasonable person would have noticed the water. Thus, the Court determined whether the condition was apparent on casual inspection was a question of fact for the jury to decide.

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