The Missouri Court of Appeals recently clarified an important issue concerning the application of the “open and obvious” doctrine in Missouri premises liability law. The doctrine remains viable under Missouri law and generally provides that a landowner is not liable for injuries caused by a condition whose danger is known or obvious to an invitee. However, Hursman v. City of Sedalia, 728 S.W.3d 558 (Mo. App. W.D. 2025) makes clear that a condition being visible does not necessarily mean that it is open and obvious as a matter of law. This is particularly important in cases involving slip and trip hazards, including slippery substances and changes in elevation on walking surfaces.
Tina Hursman was injured when she fell on a City of Sedalia sidewalk, which contained a step measuring about five inches in height and about ten feet in length. The step was incorporated into the sidewalk to accommodate a wheelchair ramp. The City had painted the edge of the step yellow:
On the date of the accident, Ms. Hursman fell on the step as she was leaving a lawyer’s office. She testified that she normally walked with her head up, looking forward, so that she could watch for pedestrians and traffic. She did not see the step, stepped off it, and fell. She had visited the lawyer’s office near the sidewalk on several prior occasions.
The City moved for summary judgment, arguing that Hursman could not establish that the sidewalk was a dangerous condition and, alternatively, that any danger presented by the step was open and obvious. The trial court granted summary judgment for the City, finding that the step was not a dangerous condition as a matter of law and, even if it were, that it was open and obvious as a matter of law.
The Missouri Court of Appeals, Western District reversed summary judgment. The Court first addressed whether there was a genuine issue of material fact as to whether the sidewalk constituted a dangerous condition. Ms. Hursman presented testimony from a safety expert who opined that the change in elevation was dangerous because pedestrians do not expect to encounter an elevation change of this nature on a sidewalk. The expert further opined that the fact that the step was painted did not render it safe since pedestrians typically look up and forward so as to avoid pedestrian and vehicular traffic. Additionally, the City’s corporate representative acknowledged that the step had been painted because the change in elevation could cause someone to lose his or her balance. The Court found that this evidence created a genuine factual issue as to whether the step constituted a dangerous condition.
The Court then addressed the open and obvious defense. The Court began its analysis by reciting the general rule that a property owner is not liable for injuries caused by dangerous conditions that are so open and obvious that invitees should reasonably be expected to discover the condition and realize the danger it poses. The Court concluded that the step did not constitute an open and obvious hazard, however, in light of the safety expert’s testimony that a reasonable pedestrian looking forward as they walked down the sidewalk might fail to see the yellow paint or appreciate the danger created by the step. Therefore, there was a question of fact as to whether the step rendered the sidewalk unreasonably dangerous and whether the City was negligent in failing to remove, barricade, or warn of it, and Ms. Hursman had presented a submissible case for premises liability.
The Hursman decision reinforces that the open and obvious defense is highly fact-intensive and that summary judgment is not likely to be granted merely because the allegedly dangerous condition was there to be seen. Rather, where there is a question as to whether a reasonable pedestrian would in fact see the condition and appreciate the danger is poses, there is likely a genuine issue of fact for a jury to decide.
Hursman is consistent with earlier appellate opinions recognizing that pedestrians are not required to walk while constantly looking at the ground. See, e.g., Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104 (Mo. 1973) (pedestrian who fell into a two-to-five-inch depression was not contributorily negligent as a matter of law even though the depression was visible) and Little v. Kansas City, 197 S.W.2d 1005 (Mo. Ct. App. 1946) (pedestrians must exercise ordinary care but are not required to keep their eyes continuously fixed on the sidewalk).
The Hursman decision provides important guidance concerning the open and obvious doctrine: if the evidence conclusively establishes that a condition was so obvious that a reasonable person would necessarily observe it and appreciate the danger it poses, summary judgment may be appropriate. But where there is any doubt on either of these issues, the case is not likely be disposed of on summary judgment. Rather, in such cases, the obviousness of the condition becomes a factor for the jury to consider in its assessment of comparative fault.