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West Virginia Legislature Looks to Reinstate the “Open and Obvious” Doctrine

In 2013, the West Virginia Supreme Court of Appeals abolished the doctrine of “open and obvious” in the case of Hersh v. E-T Enterprises, Ltd. Partnership, 232 W.Va. 305 (2013). Less than two years later, on February 4, 2015, the Senate introduced Senate Bill 13 which would reinstate what Hersh had removed from West Virginia premises liability law.


Under the bill “a possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers.” If the bill becomes law, in its current form it would also create an exception to the doctrine if the injury suffered was caused by a violation of a current code or law and safety measures. Senate Bill 13 was amended in the House and is being sent back to the Senate for concurrence. If this bill becomes law, it would restore the “open and obvious” defense.