Also known as: known or obvious danger · open and obvious danger defense
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine limiting the liability of a land possessor to invitees for physical harm caused by a condition on the land whose danger is known or obvious to them. The possessor remains subject to liability if it should anticipate the harm despite the invitee's knowledge or the obviousness of the danger. The invitee's entitlement to use public land or public utility facilities is a factor indicating that harm should be anticipated.
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Kiana Kwan walked a narrow public trail across a utility easement maintained by Kodiak Energy. The trail had been approved for public use and connected two neighborhoods. Kiana stepped off the path to pass another walker and contacted a bright yellow cable that rose several inches above the ground. Kodiak Energy had observed walkers routinely stepping onto the cable area but took no further precautions beyond painting the cables yellow.
Kurtis Kaiser drove to a Payless for Drugs store during a winter storm and parked in the lot. He saw visible ice covering the surface but proceeded across it because the store entrance was accessible only through that area and no alternative path existed. Kurtis slipped and fell on the ice, suffering injuries. The store had observed similar conditions in prior storms but had not cleared the lot.
The doctrine relieves liability when the danger is known or obvious to the invitee and the possessor has no reason to anticipate that the invitee will nevertheless encounter the harm. A prominent warning sign combined with a visible hazard and no facts showing necessity or distraction typically satisfies the rule and bars recovery.
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The fact that the invitee is entitled to make use of public land or the facilities of a public utility is a factor of importance indicating that harm should be anticipated. This factor supports liability even when the danger appears obvious because the public character of the use makes encounters foreseeable.
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In some jurisdictions the doctrine no longer operates as a complete bar because comparative negligence statutes require that known or obvious characteristics be considered as factors in the larger negligence analysis rather than as an absolute defense.
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When a possessor creates conditions that leave an invitee with no reasonable alternative to encountering the danger, such as sole access during business hours or merchandise placed out of reach, the possessor should anticipate harm despite obviousness and remains liable.
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