General Assembly Eliminates “Open and Obvious” As Complete Defense To Personal Injury Claims

By Patrick J. McBurney November 5, 2019Personal Injury Law

In legislation approved by the Governor on July 15, 2019, the General Assembly amended section 9-20-4 of the General Laws (the Comparative Negligence statute) such that the open and obvious defense to personal injury claims can no longer act as a complete bar to recovery. Previously, when a plaintiff voluntarily exposed himself or herself to the perils of an open and obvious danger, there was no duty of care imposed on the defendant. Stated differently, a defendant had no obligation to safeguard a plaintiff against personal injuries when that plaintiff exposed themselves to an open and obvious danger. Part of the reason for this bar to recovery was that open and obvious dangers are considered so evident that “any warning would be superfluous for an ordinarily intelligent plaintiff,” and thus, it would not be reasonable to hold a defendant liable for injuries sustained by a plaintiff opting to encounter the obvious danger. See Papadopoulos v. Target Corp., 930 N.E.2d 142, 151 (Mass. 2010).

With the change of the General Laws, defendants can no longer rely on the open and obvious danger defense as a complete bar to recovery. Rather, with the placement of the amendment within the Comparative Negligence statute, it appears that the open and obvious defense should factor into the determination as to whether a plaintiff was comparatively negligent, and if so, the percentage by which any award should be reduced. For plaintiffs, this legislation is welcomed news, as more claims are likely to survive summary judgment motions and make their way to juries; the flip side is that defendants have been stripped of an available defense to dispose of claims short of trial. For further information on the new law or related legal issues, please contact Attorney Patrick J. McBurney at 401-824-5100 or email pmcburney@pldolaw.com.

 

 

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Patrick J. McBurney is an Associate with Pannone Lopes Devereaux & O'Gara LLC and a member of the Corporate & Business and Litigation Teams. He concentrates his practice on providing counsel and legal support and advocacy representing clients including performing pre-trial investigation and discovery, and motions and pleadings preparation through trial, settlement and the appeal process.

Mr. McBurney earned his J.D. from St. John's University School of Law and was Associate Managing Editor of the American Bankruptcy Institute Law Review. He is a recipient of CALI Excellence for the Future Award in Constitutional Law. Attorney McBurney also served as a Judicial Law Clerk for the Honorable Associate Justice Maureen McKenna Goldberg of the Rhode Island Supreme Court and for the Honorable Associate Justice Michael Silverstein of the Rhode Island Superior Court. He graduated with a B.A. in Government from St. John's University in Queens, New York, magna cum laude. He is admitted to practice law in Massachusetts, Rhode Island and Minnesota. To contact Attorney McBurney, call 401-824-5100 or email pmcburney@pldolaw.com.

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