What Is the “Open and Obvious” Defense in a Georgia Premises Case?
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It is the owner’s argument that the hazard was plain enough that the injured visitor knew, or with ordinary care would have known, as much about it as the owner did, so the owner’s knowledge was not superior. Georgia limits it in two ways: a visitor is not required to watch every step, and a distraction the owner should have anticipated can explain why the visitor did not see the danger (Robinson v. Kroger Co., 1997).
How the defense fits the slip-and-fall test
An invitee must prove that the owner knew or should have known of the hazard and that the invitee “lacked knowledge of the hazard despite the exercise of ordinary care”. The open and obvious argument attacks that second element. If it succeeds, the invitee’s knowledge is equal to the owner’s and the claim fails; see the superior knowledge doctrine.
Limit one: not seeing a hazard is not automatically carelessness
In Robinson, the Supreme Court of Georgia disapproved decisions that held “as a matter of law that an invitee’s failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care”. Demanding that an invitee “visually inspect each footfall” would require looking “continuously at the floor for defects, a task an invitee is not required to perform”. The question is what an ordinarily careful person would have done in all the circumstances.
Robinson also put the first burden on the owner: the invitee’s proof on this element “is not shouldered until the defendant establishes negligence on the part of the plaintiff”, that is, that the plaintiff “intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known”.
Limit two: the distraction doctrine, as Robinson defined it
A distraction counts when it was “something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality”. Robinson gave three examples:
| Counts as a distraction | Did not count in decisions Robinson described |
|---|---|
| "The conduct of a store employee" | A shopper releasing a cart |
| "The premises construction or configuration" | A conversation with companions |
| "A merchandise display of such a nature that its presence would not have been anticipated by the invitee" | A tennis player's focus on the game; reading a restaurant's window sign while walking |
The merchandise-display example is narrow. Robinson noted that ordinary displays and aisle signs had “repeatedly” been treated as self-induced distractions by the Court of Appeals; the display must be one the invitee would not have anticipated. When a qualifying distraction is shown, the invitee has presented “some evidence” of reasonable care, and the factfinder decides the rest.
When the court decides instead of a jury
The defense can still win as a matter of law when the visitor’s knowledge is clear. In The Landings Association, Inc. v. Williams (2012), the Supreme Court reversed a ruling sending a fatal alligator-attack claim to a jury because the woman knew alligators lived in the community’s lagoons. Natural ice, discussed in ice and snow injuries in Georgia, is another setting where the visitor’s awareness of the weather can be decisive.
Facts that answer an open-and-obvious argument
- Lighting, color contrast, and the angle from which the hazard was approached.
- What the visitor was looking at, and who controlled it (an employee, a display, the layout).
- Whether the hazard looked dangerous, as opposed to merely visible.
- How long the hazard had been there and whether the owner inspected.
Sources
- O.C.G.A. § 51-3-1.
- Robinson v. Kroger Co., 268 Ga. 735 (1997)
- The Landings Association, Inc. v. Williams, 291 Ga. 397 (2012)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.