Court Rules Open and Obvious Defense Not a Complete Bar to Recovery in West Virginia

By Denise Johnson | December 13, 2013

  • December 24, 2013 at 7:01 pm
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    The all or nothing approach based on old English Common Law presupposes that a known or obvious hazard affords a reasonable adult the ability to determine the level of danger, and take
    appropriate action to avoid injury. That standard seems to ignore
    common sense. It may be full day light when the person assended those stairs, and it could’ve been dark and poorly lighted when he
    attempted to desend returning to his car?

    The responsible property owner knew of damage to the single hand railing, but rather than install a new single or double hand rail
    to replace the damaged rail, they chose to simply remove the damaged rail without even a temporary replacement. That seems to
    be clearly contributory to at least 50-51% if I were sitting on the jury. Whether the injured person deserves anything more for his pain in addition to economic damages and legal costs, is dependent on the evidence provided.

    It seems the court has gotten this right. I’m all for fairness
    in justice. I opposed to courts legislating, and to juries sending messages with other people’s money, but when a person suffers legitimate losses, they should be fairly compensated without having to wait years for a appeal or supreme court decision.

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