Also known as: patent dangers · obvious danger · patent danger rule
Written by attorneys — see sources below.
An obvious hazard that a reasonable person would perceive without special inspection. The hazard's openness or obviousness relieves a land possessor or product supplier of liability unless the defendant should anticipate harm despite the condition's visibility.
Perry Pratt, a customer at a shopping plaza, stepped onto a public sidewalk maintained by the plaza owner to reach a bus stop. A large, visible crack in the sidewalk caused him to trip and fracture his ankle. Because Pratt was using a public facility that invitees are entitled to access, the plaza owner should have anticipated the harm despite the crack's obviousness and therefore faces liability.
Patrick Phan purchased a flexible gas line from Omega Flex for his home renovation. The line's tendency to corrode and leak was apparent from its exposed metal surface and product labeling. When the line failed and caused an explosion, Phan's design-defect claim proceeded because the obviousness of the danger was only one factor in the risk-utility analysis rather than an absolute bar.
Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at the home of the Tinchers in Downingtown, Pennsylvania. Investigators concluded that a lightning strike near the Tinchers’ home caused a small puncture in the corrugated stainless steel tubing transporting natural gas to a fireplace. The CSST was part of the TracPipe System manufactured and sold by Omega Flex. The resulting fire burned for over an hour and caused significant damage to the home and belongings. Following the fire, the Tinchers reported the incident to their insurer, United Services Automobile Association. USAA compensated the Tinchers for their loss up to the limit of their policy and received an assignment of liability claims. The Tinchers suffered an additional out-of-pocket loss because a portion of their claimed loss exceeded the limits of the USAA policy. In January 2008, the Tinchers filed a complaint against Omega Flex in the Chester County Court of Common Pleas. They asserted claims premised upon theories of strict liability, negligence, and breach of warranty, with the strict liability claim based on Section 402A of the Second Restatement. The case proceeded to a jury trial in October 2010 before Judge Ronald C. Nagle. The Tinchers offered expert testimony that the CSST walls were only one-hundredth of an inch thick and therefore inherently defective because lightning-generated currents were highly likely to perforate them. Omega Flex presented its own experts who testified that the TracPipe System met all applicable industry standards. They also stated that the lightning strike lacked sufficient energy to cause the puncture and that an attempted bonding clamp found disconnected after the fire may have prevented the incident if properly installed. After the close of evidence, the trial court denied Omega Flex’s motions for nonsuit and directed verdict. On October 20, 2010, the jury returned a verdict in favor of the Tinchers on the strict liability claim. The jury awarded compensatory damages totaling $958,895.85 plus delay damages. The jury found for Omega Flex on the negligence claim. Omega Flex filed post-trial motions that the trial court denied, leading to entry of judgment. The Superior Court affirmed the judgment in September 2012. The Supreme Court granted Omega Flex’s petition for allowance of appeal limited to the question of whether to replace the strict liability analysis of the Second Restatement with that of the Third Restatement.
View caseNo. Under the governing rule a possessor of land is not liable for harm from a known or obvious danger unless the possessor should anticipate the harm despite the obviousness. The fact that an invitee is using public land or a public utility is a factor that supports anticipation of harm.
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Most jurisdictions treat the obviousness of a danger as one factor in the risk-utility balancing test or consumer-expectations test rather than an absolute defense. A plaintiff may still recover when the design's risks outweigh its benefits even if the danger was apparent.
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A patent danger is one that is open and obvious to the user, while a latent defect is hidden. When the danger is latent and known only to the supplier, the supplier cannot rely on obviousness to avoid the duty to warn or repair.
Supporting sources
…related to vindicating the salient public policy in cases in which the alleged defective condition is premised upon either an obvious danger or a danger outside the ordinary consumer’s contemplation suggests that a different approach is necessary and appropriate for judging the reasonableness of danger, at least respecting some…