Maryland’s Appellate Court Clarifies the Elements of the Open and Obvious Doctrine
March 11, 2021 By Mark A. Kohl
Maryland’s intermediate appellate court has clarified the elements of the open and obvious doctrine (and whether separate jury instructions and verdict sheet queries may be sought).
A landowner is generally not required to warn invitees of open and obvious hazards, and when an invitee is injured as a result of such a danger, landowners often contend they are not liable as a matter of law. The Court of Special Appeals recently clarified that the mere visibility of the hazard is insufficient – the hazard must be such that an invitee would perceive the danger in addition to the condition itself.
In Six Flags Am., L.P. v. Gonzalez-Perdomo a ten-year-old slipped on a wet wooden bridge near an amusement park attraction. Plaintiff’s expert agreed the water on the bridge was visible, but contended that the signs warning of the potential danger of slipping were insufficient. Both the trial court and the Court of Special Appeals agreed that the expert’s testimony was sufficient to create factual issue and that the open and obvious doctrine did not bar plaintiff’s claim as a matter of law.
Interestingly, the Court of Special Appeals faulted the trial court’s refusals to issue a separate jury instruction regarding the open and obvious doctrine and to include a separate query in the verdict sheet on the issue.
The Court of Special Appeals’ decision arguably raises the bar for obtaining judgment as a matter of law based on the open and obvious doctrine; however, the decision also clarifies that under certain circumstances the refusal to provide a separate jury instruction or query on the verdict sheet may constitute reversible error.