by Julia Sinor

Since 2015, when the Texas Supreme Court reaffirmed that the open-and-obvious defense in premises-liability cases is alive and well, courts have considered the defense in a slew of situations. Whether a condition is open-and-obvious is sometimes, well, obvious, but it also depends on the particular circumstances.

Those circumstances include lighting, obstructions, color contrast, size, and other characteristics of the hazard. Of course, a picture is worth a thousand words. Photographs and videos, or the lack thereof, can make or break an open-and-obvious defense. But you might have a solid open-and-obvious defense if a condition is similar to one or more of the conditions listed here:

Mike Shipman, Kristi Kautz, & Richard Harwell obtain Texas Supreme Court victory. At the trial court level, Mike and Kristi obtained a dismissal with prejudice against the Plaintiffs in a case alleging significant personal injuries. Kristi moved for the dismissal as a sanction after the Plaintiffs attempted to nonsuit and refile their case to avoid a decision against them on the merits at a hearing on Defendants’ Motion for Summary Judgment. Plaintiffs had attempted to “start over” after Mike and Kristi successfully excluded their only expert as to liability, had prevailed against Plaintiffs’ efforts to strike Defendants’ experts, and had obtained critical deposition testimony refuting their claims-making summary judgment not only likely but probable. After their appeal was unanimously denied by the Texarkana Court of Appeals, in an opinion closely tracking Kristi’s Motion for the sanction of dismissal and Richard’s brief, Plaintiffs filed a Petition for Review with the Texas Supreme Court. The Texas Supreme Court, with no justices dissenting, denied the Petition for Review, resulting in a final victory in favor of Fletcher Farley’s client.

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