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Newsletter -
Winter 2009
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In a negligence action, the plaintiff must prove that the defendant had a duty and that such a duty was breached. However, it has been a long held and viable defense in New Jersey that any condition which is “open and obvious” to the plaintiff vitiates any duty by the defendant to warn of the condition. In the past, the defense of an “open and obvious” condition resulted in a complete bar to plaintiff’s suit. Despite this defense being well established in New Jersey, courts have often ignored, minimized, and/or disregarded this valuable defense tool.
However, in the recent New Jersey decision of Donohue v. Polozzo, 2009 WL 3762689 (App. Div. 2009), this doctrine once again returned to the court’s consideration and resulted in a dismissal of plaintiff’s Complaint. In the matter of Donohue, the Law Division granted the defendants, the lessors of a single-family home, summary judgment and dismissed the plaintiff lessee’s negligence Complaint. Plaintiff fell on the basement stairway and alleged that the fall stemmed from the lack of a handrail. The trial judge held that the alleged defect, the absence of a handrail, was “patent and obvious” to the plaintiff/tenant because the plaintiff occupied the premises for the past 10 months and regularly used the basement stairs in question.
The Appellate Division affirmed the trial court’s grant of summary judgment to the defendants. The Appellate Division held that although the subject property should have been inspected by the defendants and should have conformed to all building code requirements, those alleged deficiencies did not change the fact that the condition in question, i.e. the absence of a handrail and/or the failure to warn of same, was “open and obvious.” As such, defendants lacked a duty to protect plaintiff from falling down the stairs because the dangerous condition of the stairway was obvious to the plaintiff.
The Donohue v. Polozzo decision appears to have revived the viable defense of an “open and obvious” condition as a complete bar to plaintiff’s claim. Care must be taken when defending fall down cases to determine whether the “open and obvious” defense is viable. Pre-suit investigation should be conducted to ascertain the length of time the alleged condition existed, as well as the plaintiff’s familiarity with the condition.
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