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

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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