Plaintiffs bar cheers new law on open and obvious defects.

Byline: Barry Bridges

As the legislative session was wrapping up in June, state lawmakers voted to join other jurisdictions that have jettisoned the common law principle that an "open and obvious" danger constitutes a total bar to a plaintiff's recovery of damages in premises liability actions.

According to plaintiffs' attorneys who have lobbied for the change, the new law is more consistent with the state's comparative negligence paradigm in that the factfinder will now be tasked with considering any open and obvious defects as part of deciding the parties' relative culpability.

Rep. Robert E. Craven, a North Kingstown lawyer, introduced and championed the measure in the House. Prior to that chamber's floor vote, he described it as "a good bill that gives plaintiffs a chance to get to the jury."

Opponents argued that the law would reduce protections for landowners, absolve plaintiffs of the consequences of their unreasonable conduct, and increase court costs.

However, after receiving the endorsements of both the House and Senate judiciary committees, the bill ultimately passed each chamber with almost unanimous support and was enacted with Gov. Gina Raimondo's signature on July 15. The new law applies only to personal injuries occurring after that date.

Comparative negligence context

Among those testifying in committee hearings in favor of the bill was East Providence attorney Anthony DeSisto. He advised legislators that the common law's open and obvious doctrine "short circuits" the principles underlying comparative negligence, which was adopted in Rhode Island almost 50 years ago, by taking decisions on culpability away from the jury.

"Under this legislation, whether there is an open and obvious defect will be a part of the jury's determination in finding how negligent a defendant was," DeSisto said. "We think that's fair, and we think that's good public policy."

DeSisto said that eliminating the "open and obvious doctrine" was in line with Rhode Island's "pure" comparative negligence statute, G.L. 9-20-4, under which "damages shall be diminished by the finder of fact in proportion to the amount of negligence attributable to the person injured."

"This proposal would allow the jury to decide just how much at fault the plaintiff was," he continued. "Adopt this standard and make it so a jury can decide just exactly how much the plaintiff is liable."

DeSisto added that 38 states, including Massachusetts, have already moved in that direction...