The single most common defense raised in landlord or commercial property electrocution cases is the open and obvious doctrine, the argument that an overhead power line is a visible hazard that any reasonable person should have noticed and avoided, relieving the property owner of any duty to warn or protect against it. This defense sounds intuitively strong to a jury hearing it for the first time. It is also frequently wrong, and understanding exactly why is central to effective landlord electrocution liability California litigation.
20 of 800
Vendor spaces beneath the line versus the property's total spaces
34 ft
Pole the property still allowed at the same spot after the death
California premises liability law recognizes that a property owner's duty to warn of a dangerous condition can be reduced or eliminated where the condition is so obvious that an invitee should reasonably be expected to observe and avoid it on their own. This doctrine, however, is not absolute, and California courts have recognized that even an objectively visible hazard does not automatically qualify as open and obvious if a property owner should still have anticipated that people would fail to notice or fully appreciate the danger despite its visibility, particularly where the property owner's own conduct or property configuration made contact reasonably likely notwithstanding the hazard's visibility.
Overhead power lines present a specific perceptual challenge that distinguishes them from many other obvious hazards, such as a wet floor or an uneven step. A line silhouetted against open sky, without a nearby reference point of known height, is genuinely difficult for the human eye to accurately measure. A person can see the line perfectly well and still substantially misjudge its actual height above the ground, particularly when focused on a task, such as setting up equipment or lifting an object, rather than specifically and deliberately assessing overhead clearance before every movement. Expert testimony from a human factors or vision science specialist establishing this depth-perception limitation directly undercuts the open and obvious defense's core assumption: that visibility alone equates to accurate hazard assessment.
The most powerful evidence often comes from the property owner's own witnesses. A safety representative who admits that checking for overhead line clearance never occurred to them, or that no policy ever addressed the hazard, undermines the owner's claim that the danger was so obvious it required no additional precaution.
Where only a small fraction of a property's usable area falls beneath the hazard, that disparity shows how feasible and reasonable alternative precautions were. A property with hundreds of usable spaces cannot credibly argue that relocation, height restrictions, or a simple prohibition on tall equipment in the affected area was impractical.
Evidence that the owner continued to permit the same hazardous activity in the same location after an initial incident is powerful proof against any argument that the incident was unforeseeable. Unlike inadmissible subsequent remedial measures, evidence that a hazard was never remediated is a different category entirely.
In the underlying trial, each of these points combined to defeat the swap meet owners' open and obvious defense.
The case behind this page
The full story of the fatal overhead-line contact and the jury verdict.
Read the full caseOwner duties
What property owners are required to do about overhead lines above vendor spaces and active areas.
Read the safety standardsRelated breakdowns from this case and our premises liability practice.
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Refer a caseIt is a doctrine holding that a property owner's duty to warn of a hazard can be reduced or eliminated where the danger is so visually apparent that a reasonable person should notice and avoid it without a specific warning.
No. California courts recognize that even a visually apparent hazard does not automatically qualify as open and obvious if the property owner should still have anticipated that people would fail to notice or fully appreciate the danger, particularly where the property's configuration made contact reasonably likely.
An overhead line silhouetted against open sky, without a nearby reference point of known height, is genuinely difficult for the human eye to accurately measure, meaning visibility of the line does not necessarily equate to an accurate perception of its actual height and danger.
