WV "Open and Obvious" Doctrine Abolished

"Recently, the West Virginia Supreme Court heard the case of Hersh v. E-T- Enterprises. In Hersh, the Plaintiff fell down a staircase in a commercial parking lot that lacked handrails. The Defendant claimed that the missing handrail was an open and obvious danger, while the Plaintiff claimed that the Defendant was negligent because the lack of handrails violated city code. In December 2011, the circuit court granted summary judgment to the defendants, finding no actionable negligence because the defendants had no duty of care toward the plaintiff. The Plaintiff appealed the decision.

After reviewing the facts of the case and the applicable case law, the West Virginia Supreme Court of Appeals overturned the circuit court's decision. In so doing, the Supreme Court abolished the open and obvious doctrine in premises liability negligence actions. The Court ruled that "[i]n the ordinary premises liability case against the owner or possessor of the premises, the finder of fact may consider whether a plaintiff failed to exercise reasonable self-protective care when encountering an open and obvious hazard on the premises. The Plaintiff's confrontation of an open and obvious hazard is merely an element to be considered by the jury in apportioning the relative fault of the parties." Syl. Pt. 7, Hersh v. E-T Enterprises, No 12-0106. The Court continued, "[t]he owner or the possessor of premises is not an insurer of the safety of every person present on the premises. If the owner or possessor is not guilty of negligence or willful or wanton misconduct and no nuisance exists, then he or she is not liable for injuries sustained by a person on the premises. Syl. Pt. 8, Id.

With this decision, the West Virginia Supreme Court effectively abolishes the common law "open and obvious" doctrine. However, the Supreme Court maintains that if a danger is open and obvious on a property and an individual becomes injured, then the jury or fact finder should determine how much at fault the property owner is for the injuries and how much at fault the Plaintiff is for his injuries for failing to see an open and obvious danger."