The Open and Obvious doctrine is a defense used mostly in Premise liability cases.
The general rule is that a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from any unreasonable risk of harm caused by a dangerous condition on the land. The open and obvious doctrine is a major exception to this general rule. According to the doctrine an invitor is protected from liability if the danger is an open and obvious one. The foundation for this rule is that the open and obvious nature of the dangerous situation serves as a warning to the invitee and the person is expected to recognize the potential danger and to protect himself against it. However the present position is that if the special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.
The test to determine if a danger is open and obvious is whether "an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection." Because the test is objective, this Court "looks not to whether plaintiff should have known that the condition was hazardous, but to whether a reasonable person in his position would foresee the danger. [ BAILLIE v. DIETZ ORG., 2003 Mich. App. LEXIS 3021, 4-5 (Mich. Ct. App. 2003)]
In Michigan, the open and obvious doctrine was initially based on Restatement of torts. According to Restat 2d of Torts, § 343A, a premises possessor is not liable to the invitees for harm caused by known or obvious dangers unless the possessor anticipates that harm despite the knowledge and obviousness. A possessor when he anticipates the harm should warn or protect an invitee against open and obvious dangerous conditions.
However Michigan Supreme Court in Lugo v. Ameritech Corp., 464 Mich. 512, 516 (Mich. 2001) replaced the Restatement approach with special aspects analysis which stated that : The general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers. However if the special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. A special aspect exists when the danger although open and obvious is unavoidable or imposes a “uniquely high likelihood of harm or severity of harm” [ Lugo v. Ameritech Corp., 464 Mich. 512, 518 (Mich. 2001)]
This principle was reiterated by the Supreme Court in Mann v. Shusteric Enters., 470 Mich. 320, 328-329 (Mich. 2004) wherein the court added that in order determine whether a condition is "open and obvious," or whether there are "special aspects" that render even an "open and obvious" condition "unreasonably dangerous," the fact-finder must utilize an objective standard, i.e., a reasonably prudent person standard.
This is mainly applied in negligent cases as a defense in slip-trip-and-fall case.