Property owners in slip-and-fall cases routinely argue that the hazard was plainly visible and that a reasonably attentive person would have avoided it. That argument, the open-and-obvious doctrine, functions as an affirmative defense that, if accepted by the court, can end a premises case before a jury ever hears it. But the doctrine carries exceptions that are well-recognized in every jurisdiction that follows the Restatement framework, and building a record that fits within those exceptions is the core task of plaintiff counsel in any case where defense summary judgment is anticipated.
The Doctrine's Reach and Its Limits
The standard formulation draws from the Restatement (Second) of Torts § 343A: a land possessor is not liable for physical harm caused by conditions that are known to the invitee or that are obvious, unless the possessor should anticipate that harm will occur despite the obviousness. The "unless" clause is often overlooked in practice. It reflects a deliberate choice by the drafters to preserve liability where the risk of harm, even from a visible condition, was foreseeable to the owner.
A condition qualifies as open and obvious when a reasonable person in the plaintiff's position, using ordinary care, would have recognized both the condition and the risk it presented upon casual observation. Courts apply this test objectively. The relevant question is not whether this particular plaintiff noticed the hazard, but whether a reasonable person would have. That framing benefits defense counsel in many cases, which is why the exceptions matter so much in practice.
Foreseeability of Inadvertence
The most broadly applicable exception is foreseeability of inadvertence, codified in comment f to § 343A. Even where a condition is open and obvious, the possessor remains liable if they should anticipate that an invitee will encounter the hazard despite its visibility. The core inquiry is whether the arrangement of the premises, the nature of the business, or the purpose of the visit made it predictable that a reasonable person would not be scanning the floor at the moment they encountered the hazard.
Courts have applied this principle in retail settings where checkout counters, product displays, or signage are positioned in a way that naturally directs customer attention upward or forward rather than at the floor. In those settings, the possessor created the conditions that made inadvertence predictable. The exception does not require showing that the specific plaintiff was distracted; it requires showing that a reasonable person engaged in the normal activity of that premises visit would not have been exercising constant floor-level vigilance.
The Distraction Exception
The distraction doctrine is a related but distinct theory. It applies when the possessor created or permitted a condition on the premises that affirmatively diverted a reasonable visitor's attention away from the hazard. Unlike the general foreseeability-of-inadvertence exception, the distraction doctrine focuses on a specific condition that interrupted ordinary vigilance at the moment of the fall.
Evidence for the distraction theory includes:
- In-store displays, promotional materials, or merchandise positioned near a floor-level hazard that draws customers' eyes away from the walking surface
- An employee interaction that directed the plaintiff's gaze or attention at the moment of the incident
- Crowd, queue, or congestion conditions that forced the plaintiff to focus on navigation around other people rather than on underfoot hazards
- A condition in the plaintiff's path, such as a signage cluster adjacent to a separate slip hazard, that split the attention of a reasonable person
Surveillance video is the most direct evidence for distraction claims. If footage shows the plaintiff looking at a display, a sign, or a staff member in the seconds before the fall, the defense argument that a "reasonable person would have seen it" is considerably weaker. Incident reports noting what was occurring in the area at the time of the fall should be obtained and preserved immediately, before any overwrite cycle runs. For more on premises liability evidence and litigation approach, see LawyersTrend's slip-and-fall coverage.
The Necessity Doctrine
The necessity doctrine applies when the plaintiff had no reasonable alternative path and was compelled by the purpose of the visit to encounter the hazardous condition. It most commonly arises when the dangerous area is the only available route from an entry point to the business area, or when premises conditions compel workers to traverse a known hazard as an ordinary part of their work duties.
A classic scenario is a walkway or parking area where standing water, ice, or a surface defect occupies the only path from the parking area to the entrance. The plaintiff cannot be charged with having voluntarily assumed the risk of a visible condition when there was no practical way to avoid it and still conduct the purpose of the visit. Evidence in these cases is primarily structural: photographs, premises diagrams, and testimony about what alternative routes, if any, were available at the time of the fall.
The necessity doctrine also appears in workplace premises cases, which often present a dual-track issue: the employee faces a workers' compensation bar on the direct employment claim, but if a third party controls the premises, the premises liability claim may survive on the necessity theory. For a detailed look at how workers' compensation interacts with third-party civil liability on employer-controlled premises, see LawyersTrend's comp coverage.
Michigan's 2023 Reform and the Comparative Fault Trend
In July 2023, the Michigan Supreme Court issued its ruling in Kandil-Elsayed v. F&E Oil, Inc., eliminating the open-and-obvious doctrine as a complete bar to recovery. Under Michigan's revised framework, the obviousness of a hazard is no longer a threshold question that defeats the possessor's duty. Instead, it feeds into comparative fault analysis: the jury considers the open-and-obvious nature of the condition when apportioning negligence between the parties, but it does not extinguish the possessor's duty or automatically eliminate the claim.
Michigan aligned itself with the Restatement (Third) of Torts, which takes a similar position. While most jurisdictions maintain the traditional framework, the Michigan ruling is available as persuasive authority in states that have not expressly resolved the tension between categorical duty-bar defenses and modern comparative fault regimes. The direction of travel in premises law nationally suggests the pure duty-bar version of the doctrine is on the defensive side of history.
Evidence and Discovery Checklist
The following sources should be secured as early as possible:
- Surveillance footage: send a written preservation demand the same day as intake; most commercial premises overwrite footage within 30 to 72 hours
- Incident reports and prior incident logs: prior similar events in the same area are relevant to foreseeability regardless of whether the condition was visually obvious
- Premises inspection records: gaps in inspection logs, or intervals that are too long given the volume of foot traffic, support the constructive notice argument as a fallback
- Store layout diagrams, photographs, and product placement records: document what the plaintiff would have been naturally looking at in the course of the visit
- Employee statements and witness interviews: what was the plaintiff doing? What did employees observe in the moments before the fall?