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WV Legislature Reinstates Open and Obvious Rule Protecting Landowners

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On March 3, 2015, West Virginia Governor Earl Ray Tomblin signed into law a bill paving the way for earlier resolution of civil actions filed against landowners and occupants. The bill reinstates the “open and obvious doctrine,” under which a possessor of property owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant.

The "open and obvious doctrine," first recognized in West Virginia in 1902, was abolished in a case decided by the Supreme Court of Appeals of West Virginia in 2013. The Court concluded that, even if a potential hazard on the premises is open and obvious, the owner or occupant nevertheless owes a duty to remedy the risk if it is foreseeable that it may cause harm. The Court also concluded that a trier of fact, such as a jury, should decide whether the actions to remedy the risk were reasonable and whether the individual injured on the premises failed to exercise reasonable self-protective care. Based on the Court’s 2013 decision, the fact that a hazard is open and obvious was only a factor to be considered by the jury at trial in determining fault, rather than a question to be decided by the judge as a matter of law.

The intent and policy of the new statute is to reinstate the open and obvious doctrine to its status prior to the Court’s 2013 decision. This statute authorizes courts to dismiss an action without a trial (or notwithstanding the result of a trial) if the judge determines that the hazard is open and obvious. Such a determination by the judge serves as a complete defense to all liability for damages, regardless of the relative percentages of fault of the landowner or occupier and the individual who failed to exercise self-protective care.

The new law is effective from the date it was passed by the West Virginia Legislature on February 18, 2015.

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