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An Obvious Result? Pothole Held to be Open and Obvious Despite Being Covered by Water

Premises Liability / February 8, 2021

Bierbusse v Dollar Tree Stores, Inc. underscores that in premises liability suits, a landowner has no duty to protect or warn an invitee of open and obvious conditions because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.

“Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” Bierbusse, unpub op at 2.

In Bierbusse, a water-filled pothole was open and obvious “[b]ecause a reasonable person would have been alerted to the danger of uneven ground by the existence of puddles of standing water throughout the parking lot, and nothing obscured plaintiff’s view, the hazard plaintiff encountered was open and obvious.” Id. at 3.

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