The Open and Obvious Doctrine in South Carolina Premises Liability: Not the Get-Out-of-Jail Card Defendants Think It Is
Insurance adjusters and defense attorneys routinely invoke the 'open and obvious' doctrine to deny slip-and-fall and premises liability claims. South Carolina law limits this defense significantly — especially when the property owner should have anticipated that invitees would be distracted or forced to encounter the hazard.
Walk into any premises liability dispute in South Carolina and defense counsel will quickly raise the "open and obvious" doctrine: the condition was clearly visible, the plaintiff should have seen it, and therefore the property owner owes no liability. It is a reflexive defense — and in South Carolina, it is far more limited than defendants typically represent.
What the Open and Obvious Doctrine Actually Says
South Carolina's premises liability framework, built on cases like Callum v. CVS Health Corp., does recognize that a property owner ordinarily owes no duty to warn invitees of conditions that are so obvious and apparent that a reasonable person exercising ordinary care would discover them. The rationale is straightforward: a warning about something anyone can clearly see adds nothing to safety.
But this doctrine has important exceptions that South Carolina courts have applied to keep premises liability claims alive despite the defense:
The Distraction Exception
A property owner must anticipate that invitees will be distracted by the conditions of the property itself. A wet floor at the entrance to a busy Charleston grocery store — where customers are loading bags, managing children, checking receipts, and watching other shoppers — may be "open and obvious" in the abstract but not as a practical matter to a customer whose attention is reasonably drawn elsewhere by the normal demands of the environment. South Carolina courts have held that when the defendant created an environment where distraction was foreseeable, the open and obvious defense does not automatically bar recovery.
The Deliberate Encounter Exception
When the plaintiff had no reasonable choice but to encounter the dangerous condition — for example, a broken step at the only entrance to a building — courts have declined to find the hazard "open and obvious" in the sense that bars recovery, because avoiding it was not a realistic option. This exception frequently applies in workplace settings where employees must traverse a known dangerous condition as part of their assigned duties.
Comparative Fault Analysis
Even when the open and obvious doctrine applies to some degree, it does not necessarily bar recovery — it enters the comparative fault analysis. South Carolina's modified comparative negligence rule allows a plaintiff who is partially at fault to recover as long as their fault does not exceed 50%. An "open and obvious" condition that the plaintiff failed to avoid may reduce their recovery by an assigned percentage of fault, but it does not eliminate it entirely unless the jury assigns the plaintiff more than half the fault for the accident.
The Takeaway for Charleston Plaintiffs
When an insurance adjuster cites "open and obvious" as the reason to deny a premises liability claim, that is the beginning of the analysis, not the end. South Carolina's exceptions to the doctrine, combined with the comparative fault framework, preserve meaningful claims in many situations where defendants initially refuse to accept responsibility.
How Traywick Law Helps
Our office handles slip and fall and premises liability claims throughout the Charleston area. Visit the Traywick Legal Blog for more analysis.
Talk to a Charleston Attorney
If you have questions about how this issue affects your situation in Charleston, Mount Pleasant, or anywhere in the Lowcountry, contact Traywick Law Offices for a free consultation. Call (843) 343-5092.
Disclaimer: This article is provided for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different — please consult an attorney about your specific situation.
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