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West Virginia Legislature Restores Open And Obvious Doctrine

West Virginia courts have long utilized the same rule related to "open and obvious" hazards in cases involving premises liability. In fact, it was followed for over a century. The rule regarding "open and obvious" hazards states that a property owner is not legally responsible for injuries when an individual visiting the property encounters an open,

obvious and reasonably apparent danger; chooses to ignore it; and proceeds further upon the property resulting in personal injury. Because the appearance of an obvious hazard gives notice to a reasonable person to proceed at his or her own risk, the legal fault therefore rests with the risk taker rather than the property owner who failed to secure the area and make it safe. 

Recently in Hersch v. E-T Enterprises, Ltd. et al, 232 W. Va. 305 (2013), the court overturned the open and obvious doctrine holding "if it is foreseeable that an open and obvious hazard may cause harm to others despite the fact it is open and obvious, then there is a duty of care upon the owner or possessor to remedy the risk posed by the hazard." Apparently, West Virginia legislators were not pleased with the court's decision in Hersch and reaffirmed the application of the "open and obvious" doctrine with the introduction of Senate Bill 13 and subsequent enactment of W. Va. Code § 55-7-27(a), which reads as follows:

A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers.

Premises liability law involves the legal responsibilities of property owners and occupiers to prevent injuries to persons on their property from incidents such as slip and fall accidents. Historically in our state, the classification of an entrant's status as "invitee," "licensee" and "trespasser," rather than the specific actions of a landowner, determined the rules of premises liability.

In Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999), the Supreme Court of Appeals for West Virginia abolished the legal distinction between "invitees," "licensees" and "trespassers," and created a new analysis for establishing premises liability plaintiffs based upon the terms "trespassers" and "non-trespassers." Under this new analysis, West Virginia landowners owe non-trespassers a duty of reasonable care under the circumstances. Non-trespassers may be owed a duty under some circumstances. However, as a result of W. Va. Code § 55-7-27(a), and as it was for over a one hundred years, property owners in West Virginia are only potentially liable for injuries caused by non-obvious hazards to trespassers and non-trespassers alike.

If you have been injured on the property of another, or if you are a West Virginia property owner and wish to know more about the scope of any potential premises liability to both trespassers and non-trespassers, please call Amy Crossan, an expert in personal injury law, for a consultation at 304.523.8451.

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