West Virginia courts have historically held that an injured individual is not allowed to recover damages from injuries that occur due to hazards that are open and obvious thus providing a defense to property owners. That all changed on November 12, 2013 when the state’s highest court, the West Virginia Supreme Court of Appeals, released a landmark decision in Hersh v. E-T Enterprises, Ltd., et al., No. 12-0106. This decision overturns more than 100 years of West Virginia case law by holding that the "open and obvious doctrine in premises liability negligence actions is abolished."

The Court replaced the open and obvious doctrine with a new standard of care stating that "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." Therefore, instead of precluding liability, the Court held that the question of comparative negligence when a hazard is open and obvious should be determined by a jury.

The Hersh matter arose out of a personal injury suffered by plaintiff Walter E. Hersh while shopping at a Martinsburg, West Virginia shopping plaza. While in the shopping plaza parking lot, Mr. Hersh traversed a set of stairs that did not have a handrail in

violation of a Martinsburg city ordinance. The handrail was reportedly removed by the property owner, to prevent skateboarders from using it to perform stunts, which could result in serious injury. Mr. Hersh fell down the stairs and suffered a severe head injury. There was no dispute between the parties as to whether (1) the missing handrail constituted a violation of Martinsburg city ordinance, or (2) that Mr. Hersh was aware of the missing handrail before he attempted to traverse the stairs.

In two orders dated December 15, 2011, the Berkeley County Circuit Court granted summary judgment to all defendants in the action on the grounds that a "property owner is not liable for injuries sustained as a result of dangers that are 'obvious, reasonably apparent, or as well known to the person injured as they are to the owner.'" Mr. Hersh appealed the decision to the West Virginia Supreme Court of Appeals, seeking, in part, abolishment of the open and obvious doctrine.

In reversing the circuit court, the West Virginia Supreme Court of Appeals relied on the fact that violation of the city ordinance imposed a duty of care upon the property owner and that the “obviousness of a danger does not relieve an owner or possessor's duty of care towards others . . . [w]hether a plaintiff's conduct under the circumstances was reasonable will be determined under the principles of comparative negligence. A plaintiff's knowledge of a hazard bears upon the plaintiff's negligence; it does not affect the defendant's duty.”

In an effort to preserve the logic behind the open and obvious doctrine, the Court also stated: “the finder of fact must assess whether a non-trespassing entrant failed to exercise reasonable self-protection in encountering a hazard . . . [b]ut an entrant's decision to encounter an open and obvious danger does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place.”

The Court also emphasized that it continues "to hold that possessors of property - particularly private homeowners - are not insurers of safety . . . they only have a duty to take reasonable steps to ameliorate the risk." The Court then proceeded to apply its new test to the facts of this case, finding that the circuit court "should have found that the defendants had a duty of care to install handrails on the staircase."

All property owners and business owners in particular need to evaluate their operations and property to eliminate and protect against risks associated with even the most open and obvious risks, and train their supervisors and managers on this potential heightened risk area as well.

If you would like a copy of the Hersh decision or have any questions with respect to premises liability or any other risk management issues associated with your business, please contact a member of our Architects and Engineers/Construction Liability or Retail and Hospitality practice groups.

Jump to Page

By using this site, you agree to our updated Privacy Policy and our Terms of Use