When is the Open and Obvious Doctrine a Complete Defense?

Author: Leslie Price

September 29, 2017 3:38pm

A recent decision of the Court of Appeal decision addressed application of the Open and Obvious Doctrine in a premises liability case.  In Jacobs v. Coldwell Banker Residential Brokerage Company (2017) 14 Cal.App.5th 438, 221 Cal.Rptr.3d 701, the Second District Court of Appeal affirmed summary judgment in favor of a defendant landowner sued for negligence by a plaintiff who was seriously injured after falling into an empty pool.  If there is an “open and obvious” issue, can the defendant successfully argue there is no triable issue of fact, thereby avoiding a jury trial, or will the court determine “open and obvious” is a jury question to be decided under the doctrine of comparative negligence?

It Is Not Always Obvious The Condition Is Open And Obvious

The Open and Obvious Doctrine presupposes the existence of a dangerous condition.  Whether a dangerous condition exists is usually a question of fact to be determined by the jury. See Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810, 205 Cal.Rptr. 842, 685 P.2d 1193.  However, the issue can be decided by the court as a matter of law, precluding a jury trial, if the facts are undisputed and “only where reasonable minds can come to only one conclusion.” See Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 991, 101 Cal.Rptr.2d 325, 337.

In Jacobs, supra, 14 Cal.App.5th 438, 221 Cal.Rptr.3d 701, 708, the Court of Appeal and the parties assumed the danger of the empty swimming pool “was obvious to any adult.”  The issue is not always undisputed.  In Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 25, 66 Cal.Rptr.3d 885, 895, the Court of Appeal reversed summary judgment, finding a recessed drain gate in an apartment complex walkway was not open and obvious after reviewing the same evidence the trial court reviewed in reaching the opposite conclusion.

Whether a dangerous condition is open and obvious appears to be determined under the “reasonable person” standard though the standard is adjusted where the context of the encounter between the plaintiff and the condition is unusual.  For example, the Court of Appeal in Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1300 20 Cal.Rptr.3d 780, 796, surveyed decisions nationwide before deciding in a products liability case the awareness of the danger of diving into shallow water was not open and obvious to a 14-year-plaintiff.  The cases surveyed were split as to whether the danger was open and obvious to adults, an issue the Court of Appeal declined to decide.

Open And Obvious As An Issue To Be Determined By The Court

In Jacobs, plaintiff was a prospective home buyer who wanted a better view over the backyard fence so he stepped up on the diving board. The diving board base collapsed, causing his fall into the empty pool. The Court of Appeal noted, “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” Jacobs, supra, 221 Cal.Rptr.3d at p. 708.

In Christoff v. Union Pacific R. Co. (2005) 134 Cal.App.4th 118, 126–27, 36 Cal.Rptr.3d 6, 13, the Court of Appeal affirmed summary judgment after plaintiff was struck by a train while walking on a railroad bridge.  Plaintiff admitted he was aware generally of the hazard of walking on a railroad bridge but unsuccessfully attempted to avoid summary judgment by claiming he was not aware the walkway on the bridge was so narrow he did not know he could not avoid the train.

Similarly, in Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121–22, 266 Cal.Rptr. 749, 755, the Court of Appeal affirmed summary judgment in favor of the defendant ski run operator where the plaintiff skier was injured after colliding with a tree, noting the danger was so obvious the landowner was not obligated to warn of the danger.

Open And Obvious As An Issue To Be Determined By The Jury

The issue of “open and obvious” will be submitted to the jury if the court concludes it is foreseeable the dangerous condition may still cause injury despite the fact it is open and obvious.  In that case, the landowner may have a duty to remedy the dangerous condition.  In Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 121-122, 273 Cal.Rptr. 457, the plaintiff, who was making a delivery, was injured while walking through an area which consisted of dirt mixed with broken pieces of concrete. There was evidence plaintiff’s job required he walk through the area.  The Court of Appeal reversed the jury’s verdict in favor of defendant, remanding the case for another trial, based on error in instructing the jury, as requested by the defendant, that defendant “cannot be held liable for an injury resulting from a danger which was obvious.”  Osborn, Id. at p. 115.

Open and obvious is not a complete defense when “it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).” Id. at p. 122. In Jacobs, the Court of Appeal noted it “was not reasonably foreseeable that [plaintiff] would expose himself to the risks associated with the empty pool, as he was neither required nor invited to do so.”  Jacobs, supra, 221 Cal.Rptr.3d at p. 709.

Notably, the approved, standard jury instruction CACI 1004 on the issue states only that the landowner does not have a duty to warn of an obvious dangerous condition. The use note cites Osborn for the proposition the landowner may still have a duty to take precautions against the risk.

The Court of Appeal in Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 394, 9 Cal.Rptr.2d 124, 128, similarly reached the conclusion the injury was foreseeable when reversing summary judgment in favor of the landowner where a contractor working on a boom truck was electrocuted when he came into contact with overhead electrical lines. The Court noted the practical necessity of using the boom truck to move materials made it foreseeable a worker could reasonably choose to the encounter the risk.

It is important to note the Court of Appeal did not determine the landowner breached its duty to the deceased worker. The Court decided generally under the circumstances a duty existed but it was up to the jury to decide under the facts specific to the case whether the defendant breached its duty to the decedent by not taking precautions or providing additional warnings.  Id. at p 395.


Foreseeability and reasonableness in the context of the case are the primary issues to consider in determining the probability of prevailing on a motion for summary judgment based on the argument defendant owed no duty of care to the plaintiff who chose to encounter a condition which was open and obvious.  If the condition existed in a location where one would not expect a reasonable person to encounter the risk, summary judgment may be warranted. On the other hand, if the condition existed in a location where plaintiff would reasonably encounter the risk, is much more likely the court will allow a jury to determine whether the defendant was negligent, and if so, whether the plaintiff was comparatively negligent for encountering the risk.

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