Almost every denial letter that comes back on a Las Vegas slip or trip claim contains some version of the same sentence. The hazard was open and obvious. That puddle was in plain view. Anyone paying attention could see the raised threshold. The adjuster writes the open and obvious defense as though it settles the matter. So a lot of injured people read it that way and stop.
It does not settle the matter in Nevada. The Nevada Supreme Court dealt with this argument directly. It rejected the idea that an obvious hazard automatically wipes out a property owner’s duty. What survives is a much narrower argument. It goes to the fault split rather than whether a claim exists at all. Understanding that difference often separates a claim that dies from one that pays. For the resort side of these claims, our Las Vegas Strip injury lawyer page covers the ground rules.
What Nevada Actually Decided About Obvious Hazards
The controlling decision is Foster v. Costco Wholesale Corp., 128 Nev. 773, 291 P.3d 150, decided December 27, 2012. The facts were unremarkable, which is exactly why the case matters. A shopper walking a warehouse aisle for trash bags tripped on a wooden pallet on the floor. Part of the pallet was plainly visible. A box turned partly sideways hid the corner he caught. Costco moved for summary judgment on the theory that an obvious pallet in an open aisle could not support liability. At that stage, the district court agreed. The essentials of premises claims, including how to answer defences like this one, are on our Las Vegas slip and fall lawyer page.
The Nevada Supreme Court reversed and sent the case back for trial. Its holding was direct. An obvious dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. In place of the old bright line rule the court adopted the framework of the Restatement (Third) of Torts. Under that framework, a land possessor owes a duty of reasonable care to entrants on the land. That duty covers conduct by the possessor that creates risks, and artificial conditions on the land that pose risks. It runs to entrants generally rather than only to a narrow category of invitees.
From a gate to a factor
The practical effect is a shift from a gate to a factor. Before Foster, a defense lawyer could argue that obviousness ended the inquiry. After Foster, obviousness is one piece of evidence a jury weighs. The jury then considers it when deciding whether the property owner used reasonable care and whether the injured person did. The court was explicit that obviousness remains something to consider in apportioning comparative negligence when awarding damages. That is a very different thing from a defense that terminates a case before a jury ever hears it.
You can locate published Nevada appellate decisions and the advance opinions that precede the bound volumes through the Nevada appellate courts guidance on locating decisions. That guidance routes to the official case search portal.
Why Foreseeability Replaced the Old Bright Line
The reasoning behind the change is worth sitting with, because it is what your claim actually turns on. The old doctrine grew out of an era that treated a landowner as close to sovereign over his own ground. If a visitor could see a danger and walked into it anyway, that was the visitor’s problem. Courts through the middle of the last century found that result too harsh. So they started carving out exceptions rather than defending the rule.
Nevada now asks a different question. Should the property owner have anticipated that a person would suffer harm from the condition despite its visibility? That is a foreseeability question, and foreseeability is normally a jury question. A commercial property owner in Southern Nevada knows exactly who walks its floors and how they behave. A casino operator knows guests scan machines and signage rather than carpet seams. Grocery chains know shoppers read end cap displays instead of the tile. A resort knows arriving guests are managing luggage and children while looking for a check in desk. Once a business designs a space to pull attention away from the floor, its argument weakens. It cannot credibly claim that nobody could have predicted a person would miss what was on the floor.
The Distraction Exception on Retail and Casino Floors
The distraction principle is the version of this argument that comes up most often in Clark County cases. It fits the local built environment almost too well. After all, Nevada premises defendants are frequently the same businesses that spend enormous sums engineering visual distraction on purpose.
Think about a resort corridor between a parking garage and a gaming floor. Overhead lighting serves atmosphere rather than revealing surface changes. Flooring transitions from garage concrete to patterned carpet to polished stone, and the pattern hides both moisture and level changes. Signage, screens, promotional stands and slot banks also sit at eye level for the entire walk. A raised transition strip in that hallway can be entirely visible in a photograph taken later at noon with a flash. It can still be functionally invisible to a guest moving through the actual conditions.
Proving the distraction
The heart of a distraction argument is that gap. It is the gap between what a still photo shows and what a person could realistically perceive in motion. Building it, though, requires evidence rather than adjectives. Useful proof includes the surveillance footage showing the lighting and the flow of foot traffic at the time of the fall. It also includes photographs taken at the same hour and from an approaching pedestrian’s eye level rather than from directly overhead. Add the floor plan showing what the business placed to draw the eye, and testimony from other patrons or employees about how often people stumbled at the same spot.
Retail centers raise the same issues in a different package. Our discussion of whether you can sue if you slip and fall at a shopping mall walks through the layered responsibility problem that shows up in valley malls. There, the anchor tenant, the inline store, the property management company and an outside janitorial vendor may each control a different piece of the same walkway.
Forced Encounter When the Only Route Runs Through the Defect
The second exception has even more force, and it is underused. A hazard being obvious means very little when the injured person had no lawful alternative to crossing it.
This comes up constantly in Southern Nevada. A cracked and heaved section of walkway is the only path from the accessible parking stall to a clinic entrance. Or a tenant’s route from the mail kiosk to her building runs across a sunken drain pan. A worker delivering to a loading dock must cross an unrepaired gap because that is where the dock is. Or a hotel guest must use the single open doorway while the adjacent bank is out of service. In each case the person saw the problem and had nowhere else to go. They reasonably decided the value of getting where they were going outweighed the risk of a careful crossing.
Nevada’s framework accounts for that reality. A property owner who leaves the only available route defective does not get to argue that the person should simply have declined to arrive. The evidence that carries this argument is spatial. Photographs and measurements establishing that no alternate route existed support it. So do striping and signage that funneled pedestrians into the defective path, and closure notices or cones that eliminated the other option. Maintenance records showing how long the defect sat unrepaired help as well.
Sidewalk and walkway defects have their own wrinkle regarding who is responsible for the concrete. We cover that in our guide on what to do if you trip and fall on an uneven sidewalk. Entry hardware raises a related set of questions. We handle those in our piece on automatic and revolving door injuries in Las Vegas hotels and stores.
How the Argument Survives as a Fault Percentage
None of this means obviousness has become irrelevant. It has changed jobs. Instead of ending a case, it now feeds the comparative fault calculation under NRS 41.141, Nevada’s modified comparative negligence statute. Your percentage of fault reduces your recovery. If your share exceeds the combined fault of the defendants, you recover nothing.
So a defense that once read as an outright denial is now really a bid to push a number upward. Expect the carrier to argue you were looking at your phone or carrying bags in both hands. It may also argue that you had been drinking, that you had walked the same route earlier that day, or that you wore unsuitable footwear. Those are all comparative fault arguments. They belong in front of a jury alongside evidence of what the property owner knew about the hazard. That evidence covers how long it existed and what it would have cost to fix or cone off.
The owner’s side of that ledger still matters independently. Nevada premises claims generally require proof that the business created the hazard or had actual or constructive notice of it. Inspection logs, prior incident reports for the same location, work orders, and vendor sweep schedules do the work there. A hazard that an obvious condition argument tried to bury often turns out to have generated three prior complaints.
Deadlines and the Evidence Clock in Nevada
The filing deadline for a personal injury action in Nevada is two years under NRS 11.190(4)(e). That is the outer wall, not a working timeline. The evidence that proves a distraction or forced encounter argument disappears far sooner. Casino and retail surveillance systems in the valley commonly overwrite footage within weeks. Crews repair floors, restripe transitions and change lighting, and the very condition you need to document stops existing. A written preservation demand sent early is often the single highest value step in one of these claims.
If the property belongs to a government body rather than a private business, a different set of rules applies. Those include the claim filing provisions of NRS 41.036 and the damages limit in NRS 41.035. That limit caps a tort award against the State or a political subdivision at $200,000 per claimant, exclusive of interest, and bars punitive damages. A fall at a private resort and a fall at a public building are not the same case. They should not run on the same schedule either.
Recoverable losses generally include past and future medical care, lost wages and lost earning capacity, and pain and suffering. We do not publish predicted values, and neither should anyone else. The number in any given case depends on the injury, the treatment, the fault split and the proof.
Talking to a Nevada Injury Lawyer About an Open and Obvious Defense Denial
If an insurer denied a claim by raising the open and obvious defense, The Bourassa Law Group offers a free consultation to review what happened. We identify who controlled and maintained the area, and we get preservation demands out before the footage and the maintenance records cycle away. It costs nothing to talk it through, and there is no obligation.
This article is general information about Nevada law and is not legal advice. Reading it does not create an attorney client relationship. Every case turns on its own facts, so speak with a licensed Nevada attorney about your specific situation.
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