When Open and Obvious is Neither: The Importance of Context in Human Factors Forensics

Abstract

This paper evaluates from a human factors perspective the legal theory that if a hazard is open and obvious, an injured party has limited legal recourse to pursue damages against the party that produced the hazard. A detailed human factors analysis of the context surrounding user behavior can call into question whether a hazard that may seem open and obvious to a layperson really is. A case study in which a judge considered dismissing a lawsuit because the hazard seemed open and obvious is used to illustrate how human factors testimony can significantly change the outcome of a trial. The human factors expert identified nine contextual elements that increased the likelihood that the plaintiff would be injured by the hazard despite its apparent obviousness. This testimony overcame the initial inclination of the judge and allowed the case to continue to trial.