A property or business owner has a legal duty to keep the property safe, and when this duty is breached, the injured person can sue the owner for damages. However, most business owners will resort to the defense that the dangerous situation was open and obvious and therefore no duty was owed. Since the dangerous situation was obvious, it is reasonable to assume that a person would avoid it. This is a common defense of property owners when someone has slipped and fallen on ice on their property.

Little to No Excuse

However, even if snow and ice is open and obvious, the property owner has a legal duty to clear it from the walkways within a reasonable time, since people have to walk and there is no other clear pathway available. If the property owner has taken reasonable steps to make the walkways safe by salting them then it will be difficult to prove negligence.

Black Ice

Nevertheless, when analyzing the open and obvious defense, the key question is whether the risk was obvious or not. Open and obvious defense would apply to snow and ice, and many slip and fall cases have been dismissed even before going to trial. However, what happens when the dangerous situation is not visible, such as black ice. It is not reasonable to categorize black ice as being open and obvious as it cannot be seen. Secondly, assumption of risk defense may be applicable, but the plaintiff may argue that how can a risk be assumed when it is not visible.

Pure Indifference

Each slip and fall case will be different and there will be many points to consider. Even when the dangerous situation is open and obvious, the main point the court is going to consider is whether the defendant had taken sufficient measure to avert the risk, which is salting the sidewalks. If the defendant has not done anything and is solely relying on open and obvious defense, then it will not work, especially in case of black ice.  

If the black ice is there every year then the argument of not being able to see it goes by the wayside. If everyone in the community knows that black ice has a tendency to formulate there then that could strike against the property owner and their excuse of not being able to see the black ice becomes slippery itself.