When is a hazard considered "open and obvious?"

by Mike
(Lapeer, Michigan)

I stepped in an indentation/pothole (approx. 12" in diameter and 1" in depth) in an asphalt golf cart staging area - approx 10-12 ft. from the club house door.

I fell onto my right side and sprained my left ankle, scraped right knee, got asphalt abrasions to my right hand/forearm, pain in upper chest area, hit my right temple on asphalt which left a sizable contusion.

An injury report was written by the Golf Course management, with witnesses in report. Management sent me to local Urgent Care where I got x-rays of all areas mentioned. No breaks. The Golf Course owner and management contacted Urgent Care to authorize treatment and to bill the Golf Course/Owner.

It has been a month since the injury - the golf course's Insurance Company is now saying I should submit my medical bills to my medical care provider. They stated that their inspection of the pothole noted no special aspects regarding location.

Based on an existing case law in Michigan, the hazard encountered is considered open and obvious and hence their insured is not liable.

The staging area was resurfaced (approx. 1 month) prior to my fall. The pot hole was filled with cement the day after my injury. I do not remember seeing it in the previous weeks after resurfacing.

I do not have any permanent injuries resulting from the fall. I still have slight pain in my upper rib area but it is going away - x-rays did not show a break - deemed as slightly bruised.

What should I do if the owner does not pay for services?

Visitor Question:
Disclaimer: Information provided in our response is NOT formal legal advice. It is generic legal information based on the very limited information provided. Under no circumstances should the information in our response, or anywhere else on this site be relied upon when deciding the proper course of a legal matter. Our response does NOT create an attorney-client relationship. Always get a formal case review from a licensed attorney in your area.

ANSWER for "When is a hazard considered "open and obvious?"":

It sounds as though they accepted liability from the beginning and then did some creative back peddling. I would submit a formal claim to their insurance company if you have not already done so and continue to pursue this with their insurance.

What you have described (filling the pot hole with cement) is called a subsequent remedial measure (SRM). A SRM is an improvement or repair taken following an injury caused by the prior condition of the thing repaired.

Evidence of subsequent remedial measures, however, is admissible in some circumstances, such as: To show ownership or control of the thing repaired or to impeach a claim that no such improvements or repairs were possible before the injury occurred.

As far as using your own insurance, you are always free to do so and if it's the only way to receive treatment, then I would strongly suggest that you go that route. Your health is of paramount importance. From there, though you have the option of submitting your bills back to the Golf Club's insurance carrier.

The bottom line is that you must stay on top of these insurance adjusters because they will do their best to deny or limit liability at the outset.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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Comments for When is a hazard considered "open and obvious?"

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Potholes
by: snm

Driving on Ireland´s roads can be dangerous. Not only do you have to contend with the weather, other drivers and pedestrians, but the condition of the roads in some areas is terrible.

Potholes can cause damage to vehicles and create hazards for cyclists. If you are injured due to your mode of transport finding a pothole in a road, you are entitled to claim pothole injury compensation.

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