Spring 2019

Open and Obvious Dangers in Negligence Cases

In Delaware, the “open and obvious danger” exception to negligence was recently put to the test again.

To prevail on a negligence claim under Delaware law, a plaintiff must prove that the defendant owed the plaintiff a duty and the breach of that duty proximately caused the plaintiff’s injury.  When the parties are a landowner and a business invitee, the landowner has a duty to employ reasonable measures to warn to protect the business invitee of a condition that poses unreasonable risk of harm if the landowner knows or should know of such condition.

However, there is no duty to warn of, or protect business invitees from, an open and obvious danger, known as the “open and obvious danger” exception.  An open and obvious danger is one that “creates a risk of harm that is visible… is a well-known danger, or what is discernible by [casual] inspection…to those of ordinary intelligence.”  It is a danger “so apparent that the invitee can reasonably be expected to notice it and protect against it because the condition itself constitutes adequate warning.”  Generally, whether a dangerous condition exists and whether the danger was apparent to the plaintiff are questions for the jury.   However, in “very clear cases” this is not so.

In Duran v. E. Athletic Clubs LLC (2018 WL 3096612, (Del. Super. Ct. June 7, 2018)), a plaintiff filed a lawsuit against a fitness center alleging she was injured while participating in a Zumba class when her right foot caught the edge of a mat containing weight equipment, causing her to fall into the weights. She claims she fell because she was focusing on the Zumba instructor and because overcrowding forced her to shift toward the mat.  Plaintiff claimed that the defendant permitted a dangerous condition (the mat) to exist. The defendant moved for summary judgment, arguing it owed no duty to warn the plaintiff of the “open and obvious danger.”  The defendant also argued that there was no evidence that the exercise room was overcrowded.

The court denied summary judgment, opining that because the plaintiff was moving constantly with her attention focused on her instructor as she was dancing, moving side-to-side, and changing directions in a room with 50 people with lack of ample space, the plaintiff was placed dangerously close to the mat containing the weights and the question of negligence should be presented to the jury.  In fact, the court stated further that it would only consider the “open and obvious danger” exception at the summary judgment stage in “very clear cases.”

When is it a “very clear case”?

The court did apply the “open and obvious danger” exception at the summary judgment stage in another recent case, Clifton v. Camden-Wyoming Little League, Inc. (C.A. No. K12C-06-022 (Del. Super. Jan. 21, 2014)).   Plaintiff was at a little league field and fell after stepping into a pothole, which the plaintiff described as a depression of a dirt hole in the ground in an area that was in the middle of an asphalt or concrete paved area. The incident occurred on a clear, sunny day and the plaintiff was looking in front of himself when he fell. The court opined that the pothole did not pose an unreasonable foreseeable risk of harm to any member of the public and its existence was not evidence of a defect.  The court also held that even if the pothole did pose a danger, the condition was obvious to a reasonably prudent person.  Based on these cases, it seems the court is more likely to consider summary judgment in cases where there are no distractions or other circumstances which will excuse the failure to see the alleged defect.

For more information about this article, please contact Krista Shevlin at 302-594-9780 or