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84 Marq. L. Rev. 445 (2000-2001)
The Open and Obvious Danger Doctrine: Where Does It Belong in Our Comparative Negligence Regime

handle is hein.journals/marqlr84 and id is 451 raw text is: THE OPEN AND OBVIOUS DANGER DOCTRINE: WHERE DOES IT BELONG IN OUR COMPARATIVE NEGLIGENCE REGIME? I. INTRODUCTION The open and obvious danger doctrine, available in situations in which a plaintiff acts in a manner that disregards ordinary caution in the face of a known or obvious danger,2 is standing on uncertain grounds in Wisconsin. The doctrine originated from the common-law notion that landowners have no duty to warn or protect invitees from open and obvious dangers because: (1) invitees are, in most circumstances, expected to protect themselves from obvious dangers,,3 and (2) imposing liability for obvious dangers would unfairly burden landowners by requiring them to inspect and improve their land.4 As a result of this original rule, a voluntarily confrontation of an open and obvious danger barred recovery for any injury that may have ensued as a result of a plaintiff's own actions. Confronting an open and obvious danger was an absolute bar to recovery. Wisconsin has not limited the application of the open and obvious danger doctrine to premises liability cases. For example, there is a version of the doctrine found in products liability cases,6 and like the traditional landowner application, the doctrine has acted as an absolute bar to recovery if a defect in a product is obvious.7 Additionally, 1. Wisconsin courts have used different names to classify the unique application of open and obvious dangers in Wisconsin tort law. See, e.g., Rockweit v. Senecal, 541 N.W.2d 742, 748 (Wis. 1995) (open and obvious danger doctrine); Waters v. United States Fid. & Guar. Co., 369 N.W.2d 755, 758 (Wis. Ct. App. 1985) (open and obvious danger exception); Griebler v. Doughboy Recreational, Inc., 466 N.W.2d 897, 898 (Wis. 1991) (open and obvious danger defense); Colip v. Travelers Ins. Co., 415 N.W.2d 525, 527 (Wis. Ct. App. 1997) (open and obvious danger rule). Most recently, the supreme court described it as the open and obvious danger doctrine. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, 60,613 N.W.2d 142,156. 2. See RESTATEMENT (SECOND) OF TORTS § 343A (1965). 3. Hertelendy v. Agway Ins. Co., 501 N.W.2d 903, 906 (Wis. Ct. App. 1993). 4. See Waters v. United States Fid. & Guar. Co., 369 N.W.2d 755, 758 (Wis. Ct. App. 1985). 5. See Hertelendy, 501 N.W.2d at 906. 6. See Griebler v. Doughboy Recreational, Inc., 466 N.W.2d 897 (Wis. 1991); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 360 N.W.2d 2 (Wis. 1984). 7. See Tanner v. Shoupe, 596 N.W.2d 805, 806 (Wis. Ct. App. 1999).

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