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What is the open and obvious defect defense, and can a property owner use it in my premises liability claim?


When you must file a claim for compensation after an injury on a commercial or residential property, the insurance company for the owner could state many reasons why your claim should be reduced or denied, and raise defenses to your claim if you file a lawsuit. One of the most challenging issues to overcome is the open and obvious defect defense. In this article, we discuss what this is and whether property owners in Idaho can raise this doctrine as a defense to your claim for compensation.

Can Property Owners in Idaho Use the Open and Obvious Defect Defense?

In order to prove your calegal defensese, you must show that the property owner knew or should have known of the dangerous condition that caused your injuries, but failed to take actions to remove the danger or to post warning signs. As a counter, property owners often raise the open and obvious defect defense to claim they're not liable for a victim’s injuries. With this defense, the property owner claims that the dangerous condition—such as a pothole or torn carpet—was something that you should have seen and avoided.

Here's what the law is regarding this defense in Idaho:

  • The open and obvious defect defense was abolished when Idaho adopted the modified comparative negligence defense. If you suffered a premises personal injury, this defense is good for you. All states have some form of comparative negligence defense.
  • Instead, the issue is whether the property owner had a duty to exercise reasonable care under the circumstances to eliminate the risk of harm from the open and obvious defect.
  • Under Idaho’s comparative negligence law, you're not entitled to any compensation if you're found to be more than 49 percent at fault for causing your injuries. If you were 49 percent at fault or less, the amount of your compensation would be reduced in proportion to how much at fault you were found to be. For example, if you were 20 percent at fault, you would receive 80 percent of the total compensation for your case.


Were you or a family member injured in an accident on a business or residential property? Call Morton Law Offices today at 888.716.8021 to schedule a free, no-obligation consultation to learn about your legal options.