Open and Obvious Defense to Premises Liability Claims

September 6, 2022

The 2nd Appellate District in Montes v. Young Men’s Cristian Assn. of Glendale, California (2022 Cal.App.LEXIS 677) recently reaffirmed the application of the “open and obvious” defense to premises liability claims, especially as they related to trial following an unsuccessful motion for summary judgment raising the defense.

In Montes, the decedent was 23 years old and a resident in the defendant property owner’s apartment building.  On New Year’s Eve, he ingested alcohol and marijuana and was driven home, then he informed the desk clerk he was “not feeling well” and “was high.”  (Id. at 2.)  The desk clerk later observed him behaving erratically, getting on his knees to pray, rolling around against the wall, knocking down plans and knocking down a window curtain.  Hours later, the desk clerk observed the decedent lying on the hood of a car (presumably after falling from the roof); he was later pronounced dead.  A wrongful death and survival action by the parents followed.

Defendant moved for summary judgment on the grounds that the owner did not owe a legal duty and that the danger of someone falling from a roof was “open and obvious.”  In opposition, plaintiffs presented evidence that the roof was dangerous, or specifically that it contained a trip/slip hazard, lacked guardrails, walkways, railings, there were no warning signs and there was no lock on the access door.  Plaintiff also argued the property owner knew residents accessed the roof.  Plaintiff presented expert testimony that the decedent had slipped on the sloped Spanish tiles, causing him to fall.  The trial court found an issue of fact as to whether the roof was dangerous and denied the motion.

Defendant filed a petition for writ challenging the trial court’s decision and the appellate court ordered the trial court to revisit the motion and evaluate whether defendant had a duty to plaintiff.  The trial court then vacated the order denying summary judgment, heard additional argument, then granted the motion on the basis any hazard was open and obvious.  Plaintiff appealed.

The Court of Appeal provided an extensive review of the “open and obvious” doctrine, summarizing that: “[g]enerally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.  In that situation, owners and possessors of land are entitled to assume others will perceive the obvious and take action to avoid the dangerous condition.” (Id. a 6-7.)  There is a well-established exception, however, “when necessity requires a person to encounter it.”  (Id. at 7.)  Cases finding this “necessity exception” typically involve an open and obvious hazard that was not practical to bypass.  The Court affirmed the summary judgment on the basis the decedent had no “practical necessity” to be the roof.  (Id. at 9.) 

The Montes decision emphasizes the “open and obvious” defense and its single exception, i.e., “no practical necessity” of encountering the dangerous condition.  Typically, this is a factual dispute which would defeat summary judgment, except to the extent that the court finds that the facts underlying are not, in of themselves, in dispute, as the Montes court found.

The Montes decision also illustrates the various procedural mechanisms available to a defendant following the denial of a motion for summary judgment at the trial level.  The defendant then can move for reconsideration, file a petition for writ of mandate or an appeal.  Each of these mechanisms have their own well-established procedural deadlines and timing, as well as legal grounds on which they must be premised.  Careful evaluation of the order denying is required before choosing an option, but several general principles are applicable: (1.) reconsideration is typically appropriate when there has been a change in law or there is newly discovered evidence, i.e., the Mink test; (2.) the writ is the fastest method to obtain review by the court of appeal but also the most likely to be denied; and (3.) the appeal must come from entry of a final judgment resolving the case, providing the most delayed review but the highest probability of substantive adjudication.

Gabriel Ullrich is a Senior Associate in the Firm’s Sacramento office. He can be reached at (916) 483-5181 or