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The Open and Obvious Doctrine is Abolished in West Virginia Premises Liability Cases

In a recent opinion, the West Virginia Supreme Court of Appeals has abolished the common-law "open and obvious" doctrine as an absolute defense in premises liability cases. This represents the latest step in the evolution of premises liability law in West Virginia. The decision, filed November 12, 2013, is styled Hersh v. E-T Enterprises, L.P. and the slip opinion may be found here.
In Hersh, the plaintiff fell down a stairwell that lacked handrails in a commercial parking lot. He claimed that the defendant possessor of the property was prima facie negligent due to a local ordinance requiring handrails, while the defendant argued that the lack of handrails was an open and obvious hazard for which the plaintiff could not recover. Applying the open and obvious doctrine, the circuit court granted summary judgment in favor of the defense, which the plaintiff appealed. 

In reversing the circuit court and abolishing the long-standing open and obvious doctrine, the Court has essentially applied more recently-evolved concepts of foreseeability as the ultimate test of premises liability, as well as West Virginia's prior shift to comparative, as opposed to contributory, negligence. Now, with this evolution of the law, the extent to which a hazard is open and obvious to an injured plaintiff is a consideration to be taken into account when apportioning negligence in trip-and-fall, slip-and-fall and other premises liability claims in West Virginia. 

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