In Nevada, the traditional “open and obvious defense” is no longer an absolute shield against liability. However, property owners will still heavily rely on the obviousness of a hazard to defend themselves when someone gets injured on their property by a condition that was so plain to see that any reasonable person should have taken notice and avoided it.
In modern premises liability cases, property owners owe a general duty of reasonable care to visitors regardless of how obvious a danger is. However, a property owner can still argue that they acted reasonably under the circumstances precisely because any “reasonable person” would have steered clear of the open and obvious hazard.
Therefore, if you bring a negligence lawsuit against a property owner for injuries sustained by open and obvious hazards on their premises, the property owner will argue for comparative negligence, claiming that the fault lies primarily with you because:
- the hazard was readily knowable, and
- you were not exercising reasonable care for your own safety.
Ultimately, it is up for the court or jury to decide whether the property owner acted reasonably and how much the open and obvious nature of the condition contributed to your injury.
Examples of Open and Obvious Conditions
A pond on someone’s private property is an open and obvious hazard. It is so big that any reasonable person would see it and avoid falling in. Therefore, a court would likely find that the property owner acted with reasonable care even if they did not post signs to warn others about it.
If you stand by the edge of the pond for a selfie and then fall in, you probably would not have a winnable personal injury case against the property owner: Since the pond was open and obvious, a jury would likely determine you should have known that standing near the edge would be risky and that you were the primary cause of your own accident.
Other examples of potential hazards that are typically open and obvious include:
- Moving walkways
- Escalators
- Staircases
I see slip-and-fall injuries from walkways, escalators, and staircases all the time. While owners must keep them in safe working order, they are usually found to be acting reasonably even without posting warning signs. This is because any reasonable person would notice something as open and obvious as a walkway, escalator, or staircase and then exercise caution while using them.
Example: You are running through a hotel after drinking three beers when you suddenly come upon an escalator, lose your footing, and fall down. If you sue the hotel, they would argue that the escalator was an open and obvious hazard that any reasonable person would have noticed and navigated carefully. They would successfully argue that you were at fault for running and being intoxicated, rather than them being at fault for failing to warn you about the escalator.
In contrast, a spilled glass of water on a hotel lobby floor is usually not an open and obvious hazard since water is clear, and you might reasonably miss it. Therefore, the hotel’s duty of reasonable care would almost certainly require them to clear the spill as soon as possible and to put up a “Warning: Wet Floor” sign in the meantime.
Examples of Open and Obvious Conditions with Hidden Hazards
Not all obvious hazards are the same, and some have dangerous conditions that are hidden. In these cases, property owners cannot rely on the obviousness of the general object because the specific danger was unforeseeable. Examples include:
- Moving walkways that are unusually bumpy
- Escalators that have just been washed and are slippery
- Staircases that are old with lopsided steps
It is not foreseeable to a reasonable person that walkways would be bumpy, that escalators would be slippery, or that staircases would be uneven. Therefore, the hazard itself is not “open and obvious,” and property owners would likely be found negligent if you injure yourself on them.
In these situations, the property owner’s general duty of reasonable care requires them to either:
- fix these dangerous conditions,
- cordon them off, and/or
- warn guests about them.
Can I still sue if I was injured by an open and obvious hazard?
Yes. Because Nevada courts no longer treat “open and obvious” hazards as an automatic bar to lawsuits, your case will be evaluated under Nevada’s modified comparative negligence laws. These laws permit you to recover money damages for any accident for which you were no more than 50% at fault. So even if an open and obvious hazard injured you, we could still win a lawsuit against the property owner as long as the court finds you no more than half to blame.
Example: Your neighbor is doing construction on their driveway, which has a large hole in the ground. You are texting and walking down the driveway when you fall into the hole, sustaining $10,000 in damages.
You sue your neighbor for negligence. Your neighbor defends themselves by arguing the hole was open and obvious and you should have seen it. Ultimately, the court finds that you were each 50% to blame: You for texting and walking, and the neighbor for not cordoning off the hole or acting with reasonable care. Therefore, you could still receive 50% of your damages ($5,000, which is half of $10,000).
Whether a condition’s danger is open and obvious—and whether the property owner acted reasonably regardless—is often highly subjective. Evidence I rely on to prove that hazards were actually hidden, or that an owner failed their duty of reasonable care, includes:
- surveillance video
- eyewitness accounts
- property maps
- expert testimony
Frequently Asked Questions
What is the “open and obvious” defense in Nevada?
The “open and obvious” defense is a legal argument used by property owners in premises liability cases. When a visitor is injured by a hazard, the property owner may argue that the danger was so plain and visible that any reasonable person would have noticed it and avoided injury.
Historically, this completely shielded property owners from liability, but modern Nevada law now treats it as just one factor in determining who was at fault.
Can I still sue if a hazard was open and obvious in Nevada?
Yes. In 2012, the Nevada Supreme Court ruled that property owners owe a general duty of reasonable care to visitors, regardless of how obvious a danger is.
An open and obvious hazard does not automatically prevent you from filing a lawsuit or recovering damages. Instead, a judge or jury will look at the obviousness of the hazard to determine if the property owner acted reasonably and if you share any of the blame.
How does comparative negligence work with open and obvious hazards?
Nevada follows a “modified comparative negligence” rule. This means you can recover compensation for your injuries as long as you are not more than 50% at fault for the accident.
If a jury decides you were 50% at fault because a hazard was open and obvious, your total financial award will simply be reduced by 50%. However, if the jury finds you 51% or more at fault, you will not be able to recover any money.
Do property owners have to put up warning signs for obvious dangers?
Not always, but it depends on the situation. If a hazard is entirely obvious (like a large pond or a standard staircase in good condition), a property owner may not need to post a warning sign because a reasonable person would already understand the risks.
However, if the obvious hazard contains a hidden or unforeseeable danger—such as a staircase with a broken, lopsided step—the property owner generally has a duty to fix the condition or warn visitors about it.
What should I do if I am injured on someone else’s property?
If you are injured in a slip and fall or another premises liability accident, you should seek medical attention immediately. If possible, take clear photographs of the hazard that caused your injury, report the incident to the property owner or manager, and get contact information from any eyewitnesses.
Because property owners will likely try to blame you by claiming the danger was “open and obvious,” consulting with a Nevada personal injury attorney early on can help you protect your rights and preserve crucial evidence.
Additional Resources
For more in-depth information on the “open and obvious” defense and how courts view it today, refer to these scholarly articles:
- The Open and Obvious Danger Doctrine: Where Does It Belong in Our Comparative Negligence Regime – Marquette Law Review.
- Premises Liability: The Disappearance of the Open and Obvious Doctrine – Missouri Law Review.
- Can the Open and Obvious Danger Rule Coexist with Strict Tort Product Liability: A Legal and Economic Analysis – American Business Law Review.
- Is the Danger Really Open and Obvious – Indiana Law Review.
Legal References:
- Glaster v. Dollar Tree Stores, Inc. (2019) 441 P.3d 1090 (Jury Instruction: “If you find the placement of the u-boat cart created an unreasonably dangerous condition, then you must determine if the unreasonably dangerous condition was open and obvious. A person needs to be aware of their surroundings and exercise reasonable care to avoid an open and obvious condition. If you find the u-boat to be an open and obvious condition, you must decide whether Defendant breached its duty of care to allow the condition to exist and permitting Plaintiff to encounter the condition.”).
- Moody v. Manny’s Auto Repair (1994) 110 Nev. 320 (“[D]eterminations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances…[A]n owner or occupier of land should be held to the general duty of reasonable care when another is injured on that land. . . . [and] determinations of liability should primarily depend upon whether the owner or occupier acted reasonably under the circumstances.”).
- Foster v. Costco Wholesale Corp. (2012) 128 Nev. 773 (there is a duty of reasonable care “to all entrants on the land (except for flagrant trespassers)…landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of dangerous conditions…the duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm…[T]raditionally, a landowner had no duty to protect entrants on the landowner’s property from open and obvious dangers. This court, along with the vast majority of jurisdictions, has since embraced an exception when the landowner should anticipate the harm despite the hazard’s open and obvious nature. By modifying the traditional rule, negligence laws throughout the country have progressed in favor of upholding the general duty of reasonable care … In recognition of the continuing development of the law governing landowner liability, we adopt the rule set forth in the Restatement (Third) of Torts: Physical and Emotional Harm section 51, and consequently, we conclude that a landowner owes a duty of reasonable care to entrants for risks that exist on the landowner’s property. In accordance with this position, we hold that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner.”)
- FGA, Inc. v. Giglio (2012) 128 Nev. 271 (“[W]here an owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner could be held liable for injuries to an invitee if the plaintiff proves that the store owner failed to take all reasonable precautions necessary to protect invitees from these foreseeable dangerous conditions.”).
- Moore v. Primadonna Co., LLC (Nev. App. 2026) 584 P.3d 835 (“Under the mode-of-operation approach to premises liability, a plaintiff who is injured at a self-service business establishment can satisfy the notice requirement of a negligence action if they can show their “injury was attributable to a reasonably foreseeable dangerous condition on the owner’s premises that is related to the owner’s self-service mode of operation.” Giglio, 128 Nev. at 281, 278 P.3d at 496 (quoting Sheehan, 863 N.E.2d at 1283). A plaintiff need not also show that the self-service function was traditionally performed by employees or that the owner adopted a self-service mode of operation as a newer merchandising technique.”).
