A property owner in West Virginia is required by negligence law to keep the premises in reasonably safe condition and to warn visitors of any hazards that the owner knows about or should be aware of through reasonable inspection. That obligation doesn’t apply to “open and obvious” dangers, however. The U.S. District Court for the Southern District of West Virginia recently explained that visitors assume the risk of these types of hazards.
Mr. Scaggs was injured in an accident in which he tripped over a flower pot while visiting a post office in Peach Creek. He’d gone to the post office to pick up some packages and was carrying them with both hands at the time. Scaggs said he couldn’t see the flower pot, which was placed just outside the front door and used to discard cigarette butts, because of the size of the package he was carrying. He knew the pot was there somewhere and lifted his leg in an attempt to avoid it. Scaggs lost balance after stepping in the pot with his left foot. He fell to the ground and struck his head, arm, wrist, and knee. He later sued the government for negligence under the Federal Tort Claims Act.
In response, the U.S. argued that the flower pot posed an “open and obvious hazard.” As a result, the government asserted that it wasn’t responsible for any injuries caused by the pot’s placement outside the front door. The District Court agreed. “Under West Virginia negligence law, a plaintiff must show that (1) defendant owed plaintiff a duty of care, (2) defendant breached that duty, and (3) the breach proximately caused plaintiff’s injury,” the Court explained. A property owner owes no duty, however, to warn visitors about dangers that are open and obvious or to eliminate those dangers from the property. Instead, the invitee assumes the risk related to those dangers. “There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant,” the Court said.