Who is responsible in a slip and fall when someone is injured by a hazard that is open and obvious such as a defect in a stair or an obstacle left on a traveled path? Until recently the law in Massachusetts held that a landowners duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to dangers that would be obvious to persons of average intelligence. If a danger was open and obvious meaning that a reasonable person would have discovered the danger, then the landowner had no duty to warn of the hazard or fix it.

Recent cases from the Massachusetts Appeals Court, however, have revealed a important adjustment in the way liability is assessed when dealing with open and obvious dangers that the public may encounter every day.

The courts are now applying the standard of whether a reasonable would have appreciated the danger and avoided it. As the Appeals Court noted in a case decided in December 2011, an open and obvious danger will not always relieve a property owner of the duty to use reasonable care in making the property safe for lawful visitors.

A duty to warn and remedy may arise where the possessor has reason to expect that a lawful visitor will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. The revised analysis recognizes that even a reasonable person may not be able or willing to avoid some perils although open and obvious, such as a pathway covered with snow and ice, and places the burden and duty on the property owner to remedy all conditions that could foreseeably cause injury.