The big argument against awarding money for a slip and fall injury is contributory negligence. Maryland, DC and Virginia are among the few states which allow a party, who is being sued for negligently causing a personal injury, to raise this defense. An injured person need only be a little negligent and the will be prevented from obtaining compensation from another party whose negligence was a much more significant cause of their injury. Thus, the defensive argument in any slip and fall case is if the person who caused the injury could see the cause of the injury, so could the person who was injured.

However, in a recent case involving Kingsmill Resort in Virginia, Eastern District Judge Mark Davis denied a motion for summary judgment on the issue of whether grass that grew over a pathway was obvious enough to infer contributory negligence when tripped upon. The court reached this conclusion because it believed that reasonable minds could differ as to whether the grassy area was: (1) a visible condition that, while seemingly obvious due to its size and contrasting color, did not suggest a trip hazard or other danger; or (2) an open and obvious “defect” in the path that a pedestrian/invitee exercising reasonable care would have identified as a danger/hazard.