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Slip And Fall Injury? Alabama Supreme Court Discusses Open And Obvious Defense.

Slip And Fall Injury? Alabama Supreme Court Discusses Open And Obvious Defense.

Accident & Injury Lawyers at Blackwell Law FirmSlip and fall injury? Many lawyers cringe at the phrase. Why? The answer is simple — These are among the most difficult cases. Public perception and legal reality are very different when it comes to slip and fall cases. Many people think, I slipped and fell at Walmart. So, Walmart has to take care of my injuries. Most people think the property owner is simply responsible for a fall. But, that’s not the law. The reality is much different. Walmart is only responsible in certain, specific situations. Sorry (not really) to pick on you, Walmart. But, that’s the price you pay when you are the biggest retail store.

Slip and fall cases are very difficult. The rights and responsibilities vary depending on the reasons why you are present on the property. That’s a discussion for another post. And, these cases are won or lost on specific, detailed facts.

One of the biggest defenses to slip and fall cases — The Open And Obvious Defense. What is this defense? If the danger should have been observed by the injured person, it is considered open and obvious. The question is whether a reasonable person would have noticed the danger. That’s a tough issue in many slip and fall cases. Again, the specific facts are key!

In some cases, the danger is SO open and obvious, the court will simply rule for the defendant. But, in most cases, the court will allow the jury to decide whether the danger was open and obvious. If you are hurt at a business, you will likely face this defense at trial.

The Alabama Supreme Court rarely addresses slip and fall cases. Yet, it’s early in 2020 and we already have a decision on this topic. And, the Supreme Court’s decision centers around the open and obvious defense. The case is McClurg v. Birmingham Realty Company. Let’s look first at the facts. An elderly lady went shopping at a local Dollar Tree. While in the parking lot, she retrieved a cart. As she started toward the store, she stepped into a pothole in the parking lot. She testified she did not see the hole because she was focused on the shopping cart. When the injured lady made a claim, the store defended the case by arguing the pothole was “open and obvious.”

Was the pothole open and obvious? Was it so obvious the court should have simply ruled for the defendant? Or, was it an issue for the jury to decide? The Supreme Court provided some interesting discussion. Specifically:

A reasonable jury could conclude that people exercising reasonable care while walking in a parking lot are normally watching for other hazards, such as cars, other pedestrians, and stray shopping carts, and may not necessarily notice a pothole in the asphalt. Because a reasonable jury could conclude, under the circumstances of a given case, that a pothole is not an open and obvious danger, potholes in parking lots are not an open and obvious danger per se.

I’ll say it again — These cases depend upon very specific facts. Think about this recent pothole case at Dollar Tree. Where did the elderly lady focus her attention and why? What awareness did she have of her surroundings and why? What was the appearance of the pothole? Size? Shape? Depth? Empty or filled with water? Was she warned of the hazard? A slip and fall case is won or lost on the details.

What should you do if seriously hurt by slipping or tripping because of a hazard? Here are two things to keep in mind:

  • Gather as much evidence as possible. Photographs and witnesses are very important. The hazard that caused your injury may be fixed, repaired or removed quickly. Eyewitnesses soon disappear if you do not have good contact information. Since these cases depend upon detailed facts, gathering the evidence before it is lost is key.
  • Remember the insurance or claims adjuster is not your friend. Adjusters often act friendly at the beginning. They may request information and bills, promising to help. They want you to supply information because they are investigating your claim. Keep in mind the adjuster understands the open and obvious defense. Because of that, your words matter. The adjuster will likely record you. If you say the wrong thing, your claim could be denied. If you are seriously hurt, you may want to consult a skilled attorney before answering the adjuster’s questions.

We often receive calls from people who fell on a business property, are hurt, and cannot understand why their claim has been denied. Sometimes they’ve contacted several lawyers. Alabama law makes these cases difficult. Because of our law, small details can make all the difference. If you are hurt, consult a lawyer who has actually prepared these cases for trial and appeal. We have and understand the legal issues for these claims.


From its office in Huntsville, the Blackwell Law Firm represents accident and injury victims across Alabama. We focus all our work on personal injury and damage trials. If you are seeking information, take a look at our articles or the FAQ section of our website. We are happy to answer questions. Consultations are always free and confidential.