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NO GARDEN OF ROSES
Q: Walking through an experimental weed garden, I tripped and fell over a
raised brick. I had not realized that the bricks on the walkway were so uneven. I
have photographs, and they show me lying on the walkway shortly after the
accident. However, the photos do not portray the raised brick on which I fell.
A: The owner is likely to argue: (a) the walkway was not defective; (b) even
if the walkway was, the defect was ‘open and obvious’; and (c) even if the defect
was not, the owner lacked notice of it. A common form of making the third
argument is to say that the defect was ‘trivial’.
To prove that the defect was trivial, the owner must show (a) that the
defect is, under the circumstances, physically insignificant and (b) that the characteristics
of the defect or the surrounding circumstances do not increase the risk
that the defect would normally pose.
To prove that the raised brick was an open and obvious condition, the
owner would need to show that such bricks were inherent to the nature of the
property and could reasonably be anticipated by those using it. If a condition is
open and obvious, then an owner often has no duty to protect or warn against it.
‘Open and obvious’ is generally defined to mean readily observable by someone
employing the reasonable use of his or her senses.
The absence of a photograph of the raised brick is indeed a big
challenge. Perhaps you can obtain photographs elsewhere in the garden, which
show that raised bricks were commonplace there. Even better, perhaps the culprit
brick has not been reset, so that you can get a photograph of that very brick. In
addition, you may well want to take the depositions of the owner and even an
expert witness. A landowner has a duty to maintain its premises in a reasonably
safe condition. A garden is no exception.