Just how “open and obvious” must a property defect be? In Hursman v. City of Sedalia, the Missouri Court of Appeals for the Western District discussed a landowner’s duties with respect to invitees, reaffirming that tripping hazards are not necessarily open and obvious just because a defendant presents evidence that the plaintiff could have seen it.
The open and obvious doctrine stands for the proposition that invitees of landowners should be expected to exercise ordinary perception, intelligence, and judgment to notice, appreciate, and avoid a risk posed by a hazard. However, this defense is qualified in part by whether it would be reasonable to expect an invitee to discover such a condition.
This “reasonableness” inquiry is at the heart of the Hursman decision. Assuming a “sudden change in elevation” on a sidewalk constituted a dangerous condition, the court addressed whether painting the sidewalk step yellow was sufficient to discharge the City of Sedalia’s duty to fix or warn of the dangerous condition.
In opposition to the City’s motion for summary judgment, the plaintiff provided evidence from a safety expert who reasoned that people do not generally look downward while walking, but straight ahead, reasoning that it would be entirely possible for a pedestrian not to see a painted line on a step in their peripheral vision. The Hursman court agreed, concluding that just because a plaintiff could have seen an unobscured dangerous condition does not necessarily mean the condition was open and obvious as a matter of law. Accordingly, the court reversed summary judgment for the City and remanded for further proceedings.
This ruling reinforces that Missouri courts apply the open and obvious doctrine narrowly, emphasizing that whether a hazard is visible is not the determining factor. Rather, the inquiry focuses on the degree of discernment a reasonable person would be expected to exercise under the circumstances, and how closely the plaintiff’s actual behavior mirrors this. In doing so, courts have relied on expert analyses of human behavior and attention patterns in conjunction with the specific physical conditions present at the time of the incident.
As an aside, this action was brought against the City of Sedalia via the “dangerous condition” exception to Missouri’s sovereign immunity, which would ordinarily protect the City from tort liability. Sovereign immunity is an English common law doctrine associated with the legal precept rex non potest peccare—Latin for “the king can do no wrong.” While the origin of the concept is debated, most scholars trace it back to the late thirteenth century during the reign of Edward Longshanks (who you may remember from the movie Braveheart). Missouri’s reception statute, § 1.010 RSMo, expressly adopts English common law “made before the fourth year of the reign of James the First,” or 1607 A.D.
From this perspective, the Hursman decision emphasizes that governmental entities and private landowners are subject to comparable obligations regarding premises safety. The Missouri legislature’s waiver of sovereign immunity for dangerous conditions serves an important policy function: it balances the need to protect taxpayers from excessive liability exposure while incentivizing public entities to maintain safe premises. By extension, this framework requires public entities to invest in monitoring, design improvements, and safety measures for public property—spending that may increase operational costs in the short term but will ultimately mitigate future State liability in the long term.