“It was right there. You should have seen it.” If a store manager or an insurance adjuster has already said some version of that to you, you’re probably replaying the fall and wondering if they’re right. In Nevada, being told you fell over an open and obvious hazard is not the end of your claim. It’s the opening move in an argument about how much of the blame is yours, and that argument has answers.
This guide explains what counts as an open and obvious hazard, how Nevada law actually treats it, and what pushes the blame back where it belongs: on the property owner who left the danger there.
What Counts as an Open and Obvious Hazard?
An open and obvious hazard is a danger so plain that a reasonable person walking through the same space would notice it and avoid it. Think of a large spill in the middle of a brightly lit aisle, a visibly broken step, or construction debris piled across a walkway.
The key word is reasonable. The question isn’t whether the hazard can be seen in a photo taken afterward. It’s whether an ordinary person, in that moment, under those conditions, would have spotted it.
Plenty of hazards that look obvious on paper aren’t obvious in real life:
- Clear liquid on glossy tile, which reflects overhead light and disappears
- A single step down that’s the same color as the floor around it
- A hazard partly blocked by merchandise, a cart, or other shoppers
- A dim parking lot or stairwell after dark
- A cracked curb or uneven threshold that only shows up from certain angles
Stores and their insurers tend to call almost everything “obvious.” That label is a conclusion they want you to accept, not a fact they’ve proven.
Does an Open and Obvious Hazard Bar a Slip and Fall Claim in Nevada?
No. Some states still treat an obvious danger as a complete bar to recovery, which is why so much of what you read online sounds discouraging. Nevada doesn’t work that way.
In Foster v. Costco Wholesale Corp. (2012), the Nevada Supreme Court looked at a shopper who tripped over a wooden pallet in an aisle at a Henderson Costco. The lower court threw out his case because the pallet was supposedly open and obvious. The Supreme Court reversed. It held that property owners owe reasonable care to people on their property, and that an obvious danger does not automatically shield an owner from liability.
Instead, obviousness becomes one piece of a bigger picture. A jury weighs whether the owner acted reasonably and whether you did enough to protect yourself. If you share some of the blame, your recovery may be reduced, but your claim doesn’t disappear.
That’s the core of how a Las Vegas slip and fall lawyer approaches these cases: the fight isn’t over whether you can bring a claim. It’s over the percentages.
How “You Should Have Seen It” Becomes a Fault Percentage
Here’s what the defense is really doing when it calls a hazard open and obvious. It’s building a case that you were careless, because every point of fault it can assign to you comes straight off what it has to pay.
Nevada uses a modified comparative negligence rule. You can recover as long as your share of fault is not greater than the combined fault of the people you’re holding responsible. Your compensation is reduced by your percentage, and you’re barred only if you’re found more than 50% at fault.
A simple example: if your damages are $100,000 and you’re found 20% at fault, you recover $80,000. If the insurer can push your share to 60%, you recover nothing. That’s why the “obvious hazard” argument matters so much to them, and why you shouldn’t accept it at face value. For a deeper look at how the percentages work, see our guide to comparative negligence in Nevada.
Attorney Glen Howard spent years on the other side of these cases as an insurance defense lawyer. He knows the script, because he used to help write it: lock in the injured person’s own words early, call the hazard obvious, and treat that as settled before anyone looks at what the property owner did or didn’t do.
Where the Blame Gets Written Down First
The open and obvious argument usually starts within minutes of your fall. A manager fills out an incident report and may note that you “weren’t watching where you were going.” Later, an adjuster calls and asks friendly questions like “You saw the spill, right?”
Anything you say in those moments can be quoted back as an admission. Before you sign anything at the scene, read our guide on whether to sign an incident report after a slip and fall.
What Pushes the Blame Back on the Property Owner
The Foster decision recognized that an owner can still be responsible for a visible hazard when it should have expected people to get hurt anyway. Here are the facts that most often shift the percentages.
Something Pulled Your Attention Away
Stores are designed to grab your attention. End-cap displays, sale signs, product shelves at eye level, and crowded aisles all draw your eyes up and away from the floor. Nevada law recognizes that a property owner should anticipate this kind of distraction. A hazard placed where customers are meant to be looking at merchandise isn’t “obvious” in any practical sense.
The same logic applies with extra force on a casino floor, where lighting, sound, and crowds are engineered to hold your attention. Falls inside a resort raise their own issues, which our casino injury attorneys handle separately.
The defense has its own version of the distraction argument, usually pointing to your phone or what you were carrying. That’s one more reason to pin down exactly what had your attention and why.
There Was No Reasonable Way Around It
Sometimes you see a hazard and still have no good option. The only entrance to a store is wet from the sprinklers. The aisle you need is blocked by a pallet. The stairs are the only way out of an apartment building. Whether you had a reasonable alternative is part of how a jury judges both your conduct and the owner’s.
A Sign Isn’t the Same as a Fix
A wet floor sign or a strip of caution tape doesn’t automatically end a claim. The real question is whether the owner acted reasonably. Was the sign placed where people would actually see it? Was it left up for hours instead of the spill being cleaned? Had the same leak or broken tile been reported before?
How long a hazard sat there often says more about the owner’s care than about yours. Sweep logs and inspection records can show that, which is why it’s worth knowing how to get store inspection logs after a slip and fall.
It Looked Different in the Moment
Photos taken after a fall, often with a flash or from directly above the hazard, can make anything look obvious. Real conditions matter: glare from skylights, dim lighting in the back of a store, a floor that was just mopped and looks uniformly shiny.
Surveillance video is often the best evidence of what you could actually see, but stores record over it quickly. Here’s how long stores keep surveillance after a fall and how to stop it from being erased.
If the Store Is Already Saying It Was Obvious
If you’ve already heard the open and obvious argument, a few steps protect you from letting it stick:
- Photograph the hazard from your own eye level. Show what a person walking normally would have seen, not just a close-up of the floor.
- Note the lighting and time of day. Glare, shadows, and dim corners matter, and they change by the hour.
- Write down what had your attention. A display, a sign, a child, a crowd. Do it now, while the memory is fresh.
- Don’t agree that you “should have looked.” Be polite and factual, but don’t accept the store’s version of events in a statement or on a recorded call.
Every case is different, and the right next step depends on what happened and what evidence exists. A short conversation with a Nevada attorney can tell you where you actually stand.
Frequently Asked Questions
Can I sue for a slip and fall if I saw the hazard?
Yes, in many cases. Nevada doesn’t treat an open and obvious hazard as an automatic bar to recovery. Seeing the danger may affect how fault is divided, but it doesn’t erase the property owner’s duty to keep the premises reasonably safe. The questions that matter are whether the owner should have expected people to get hurt despite the hazard being visible, whether you had a reasonable way to avoid it, and how long it was left there. If you’re found partly at fault, your compensation is reduced by your share, and you can still recover as long as you’re not more than 50% at fault.
Does a wet floor sign protect a store from liability in Nevada?
Not automatically. A wet floor sign is evidence the store knew about the hazard, which can actually help your claim. Whether the sign protects the store depends on whether it acted reasonably overall. A jury may consider where the sign was placed, whether it was visible from the direction you approached, how long the spill sat before anyone cleaned it, and whether the store simply put up a sign instead of fixing the problem. A sign tucked behind a display or left out for hours over a recurring leak is a very different story from a quick warning while an employee mops.
Who decides whether a hazard was open and obvious?
Usually a jury, not the store or its insurance company. In Foster v. Costco, the Nevada Supreme Court sent the case back because whether the hazard was truly obvious, whether the store used reasonable care, and whether the shopper protected himself were all factual questions. That means an adjuster calling a hazard “obvious” is only stating the insurer’s position. In practice, most claims settle before trial, so the real battle happens in negotiations, where evidence like video, inspection logs, and witness statements determines how strong each side’s argument looks.
They Say You Should Have Seen It. We’ll Ask What They Should Have Done.
If you’ve been told your fall was your own fault, you deserve a second opinion from someone who knows how that argument gets built. Glen Howard is a licensed Nevada attorney and a former insurance defense lawyer. He knows which “obvious hazard” claims fall apart once the video, the sweep logs, and the store’s own records come out.
Wondering whether you still have a case? Request a free case review and tell us what happened. We’ll look at the evidence before it disappears and give you a straight answer. You pay no fee unless we win.
Learn more about how our slip and fall legal team in Las Vegas proves what property owners knew, or explore our broader Las Vegas premises liability practice.
