Premises liability cases are some of the most hotly contested in personal injury law, especially when a plaintiff is injured inside a retail store. While plaintiffs’ counsel works to show that the store or property owner failed in their duty of care, defense attorneys often rely on a predictable set of arguments to shift blame or minimize damages.
As a retail safety and liability expert witness, I’ve seen the same defense strategies surface time and again. Knowing what to expect can help plaintiff attorneys build stronger cases, anticipate challenges, and prepare rebuttals supported by both evidence and expert testimony.
In this article, I’ll walk through the most common defense arguments in premises liability cases, explain how they are typically framed in retail injury lawsuits, and share examples from anonymized past cases.
1. The “Open and Obvious” Hazard Defense
One of the most common arguments is that the dangerous condition was “open and obvious” to any reasonable person. In other words, the defense will argue that the plaintiff should have seen and avoided the hazard.
For example, in a slip-and-fall case I worked on involving a spilled beverage in a grocery aisle, the defense claimed the liquid was so visible that the customer must have ignored it. They argued that no reasonable shopper would have walked through it.
From an expert perspective, this argument often falls apart when you consider real-world conditions. A spill on a shiny tile floor, poor lighting, or distractions such as promotional signage can all make a hazard far less obvious than the defense claims. Jurors often appreciate when these details are explained in plain, practical terms.
Attorney takeaway: Anticipate the “open and obvious” defense by gathering clear photographic evidence, surveillance footage, or testimony about lighting, floor surfaces, and sightlines.
2. The “Plaintiff’s Own Negligence” Defense
Another frequent defense strategy is comparative or contributory negligence. Here, the defense argues that the plaintiff was careless—looking at their phone, not watching where they were going, or even wearing improper footwear.
In one retail case, a plaintiff tripped over a poorly secured floor mat near the entrance. The defense claimed she was “distracted by her shopping list” and thus responsible for her own fall. They attempted to shift liability entirely onto the customer.
From my experience, this argument ignores the fact that stores have a duty to anticipate normal customer behavior. People will carry shopping lists, push carts, or look up at store displays. Retailers are expected to design and maintain safe environments even when customers are reasonably distracted.
Attorney takeaway: Be prepared to counter this argument with evidence that shows the hazard was unreasonable regardless of plaintiff distraction, and emphasize the store’s duty of care.
3. The “Lack of Notice” Defense
Defense attorneys frequently argue that the store had no notice—actual or constructive—of the hazard. They may claim that the dangerous condition appeared suddenly, and therefore employees had no reasonable opportunity to address it before the accident occurred.
For instance, in a supermarket slip-and-fall case, the defense argued that a spilled container of yogurt had been dropped only moments before the plaintiff’s fall. They contended there was no time for staff to discover or clean it up.
As an expert, I often look at inspection logs, store policies, and staffing practices. In many cases, surveillance video or testimony reveals that employees walked past the hazard multiple times without taking action. This weakens the defense significantly.
Attorney takeaway: Request inspection and cleaning records early in discovery, and consider expert testimony to establish industry standards for hazard detection and response.
4. The “No Duty Owed” or “Lack of Proximate Cause” Defense
Some defense arguments center on the idea that the property owner owed no duty in the first place, or that the plaintiff’s injury was not proximately caused by the alleged hazard.
In one case I reviewed, a customer was injured by falling merchandise from a high shelf. The defense claimed that the store had no duty to warn because the product was stacked “securely enough,” and that the injury may have been caused by the plaintiff “reaching improperly.”
This type of defense often comes down to industry standards. For example, retail safety guidelines are clear about shelf stacking, load limits, and customer safety zones. When the evidence shows a store failed to follow these, the “no duty owed” defense becomes far less convincing.
Attorney takeaway: Strengthen your case by tying the store’s actions—or inactions—directly to established safety standards and best practices.
5. The “Minor Injury or Preexisting Condition” Defense
Finally, defense attorneys often attempt to minimize damages by arguing that the plaintiff’s injuries are minor, exaggerated, or due to preexisting conditions.
In one premises case, a plaintiff suffered a serious back injury after slipping on a wet floor. The defense argued her condition was the result of “degenerative changes” unrelated to the fall. They tried to reduce liability by framing the incident as inconsequential.
While medical records are critical here, so is context. The timing of symptoms, witness accounts, and expert testimony on injury mechanisms can all support causation. I’ve worked with attorneys to demonstrate how a fall or impact aggravated a condition, even if some degeneration already existed.
Attorney takeaway: Anticipate this defense with detailed medical documentation and, when possible, expert input connecting the mechanism of injury to the incident itself.
Preparing for Defense Tactics in Premises Liability Cases
Defense attorneys in premises liability cases often rely on predictable strategies: arguing hazards were “open and obvious,” blaming the plaintiff for negligence, claiming lack of notice, denying duty, or minimizing injuries.
For plaintiff attorneys, anticipating these defenses early is essential. Collecting strong evidence, engaging experts who can explain retail industry standards, and preparing fact-based counterarguments can make all the difference in settlement negotiations or trial.
If you are representing a plaintiff injured in a retail store, I can provide expert analysis on store safety practices, hazard recognition, inspection protocols, and retail industry standards. My role is to help you clearly demonstrate where duty of care was breached—and why your client’s injuries were preventable.
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