W. Va. Code » §55-7-28. Limiting civil liability of a possessor of real property for injuries caused by open and obvious hazards.
West Virginia Code

W. Va. Code § 55-7-28 (2026)

Limiting civil liability of a possessor of real property for injuries caused by open and obvious hazards

✓ text as last checked Sept. 2026 (this copy records no edition or section history)
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ARTICLE 7. ACTIONS FOR INJURIES.

§55-7-28. Limiting civil liability of a possessor of real property for injuries caused by open and obvious hazards.

(a) A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers.

(b) Nothing in this section creates, recognizes or ratifies a claim or cause of action of any kind.

(c) It is the intent and policy of the Legislature that this section reinstates and codifies the open and obvious hazard doctrine in actions seeking to assert liability against an owner, lessee or other lawful occupant of real property to its status prior to the decision of the West Virginia Supreme Court of Appeals in the matter of Hersh v. E-T Enterprises, Limited Partnership, 232 W. Va. 305 (2013). In its application of the doctrine, the court as a matter of law shall appropriately apply the doctrine considering the nature and severity, or lack thereof, of violations of any statute relating to a cause of action.

Notes of Decisions
Cited in 20 cases (11 in the last 5 years), 2019–2026 · leading case: Joey J. Butner v. Highlawn Mem'l Park Co., 881 S.E.2d 390 (W. Va. 2022).
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Joey J. Butner v. Highlawn Mem'l Park Co., 881 S.E.2d 390 (W. Va. 2022). · cites it 16× “We disagree with the court’s analysis, which turns the open and obvious danger doctrine inside out and creates a lose-lose proposition for any plaintiff: if the plaintiff can see or otherwise perceive the danger, he or she loses because the danger is open and obvious; and if the…”
Vickie Spenard v. Specialized IRA Servs. FBO Account 103-206 & Prop. Connection, LLC, No. 24-ica-93 (Dec. 23, 2024). · cites it 11× “” W. Va. Code § 55-7-28 (c). Here, Ms. Spenard argues that the record established that respondents were aware of the missing handrail and chose not to install one despite knowing it was required by City Code.”
Joey J. Butner v. Highlawn Mem'l Park Co., 881 S.E.2d 390 (W. Va. 2022). · cites it 8× “1 W. Va. Code § 55-7-28 (a) (emphasis added).”
Gable v. Gable, 858 S.E.2d 838 (W. Va. 2021). · cites it 6× “]” W. Va. Code § 55-7-28 (a) (2015). The defendant suggested that, factually, the plaintiff might say in his case that “repair work was being performed on the porch” and say that the porch was “covered in paint” and “paint flakes” so as to have “made the debris on the steps…”
Aitcheson v. Dolgencorp, LLC, No. 3:18-cv-00174, 2020 WL 411037 (N.D. W. Va. Jan. 24, 2020). · cites it 5× “” W. Va. Code § 55-7-28 (a) (2015). In addition, “[e]ach person has a duty to look, and to look effectively, and to exercise ordinary care to avoid a hazard because if [s]he fails to do so and is injured, h[er] own negligence will defeat recovery of damages sustained.”
Huron v. Bojangles' Int'l, LLC, No. 3:17-cv-03898 (S.D. W. Va. Mar. 11, 2019). · cites it 5× “W. Va. Code § 55-7-28 (a). Nevertheless, the West Virginia Supreme Court stated that this statute does not abrogate the fact an owner or occupant of a premise still owes “‘an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe…”
Dean Fuller v. City of Huntington, No. 19-0881 (W. Va. July 30, 2020). · cites it 4× “West Virginia Code Section [§] 55-7-28(a) states that: [a] possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured…”
Gable v. Gable, 858 S.E.2d 838 (W. Va. 2021). · cites it 4× “W. Va. Code § 55-7-28 (eff. 2015). By enacting this statute, the Legislature has made clear that there simply is no duty owed “to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or…”
Regina A. Drew v. Dillons Furniture, No. 20-0842 (W. Va. Mar. 7, 2022). · cites it 4× “However, under the open and obvious doctrine, which was legislatively established in West Virginia Code § 55-7-28, [a] possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious,…”
Brown v. Hudgins, No. 3:21-cv-00146 (N.D. W. Va. Oct. 21, 2022). · cites it 4× “However, Defendants contend that regardless of the actual conditions of the recreation area on February 3, 2021, “courts in this Circuit consistently recognize that decisions regarding safety and maintenance fall within the discretionary function exception.”
The Est. of R. Shane Adams et al. v. Zenith Energy Terminals Holdings, LLC, No. 1:24-cv-00052 (N.D. W. Va. Mar. 30, 2026). · cites it 4× “Defendants argue each of Plaintiffs’ claims fail as a matter of law for several reasons: (1) Defendants assert Plaintiffs failed to support the duty and causation elements of their claims; (2) Defendants argue they are statutorily relieved of any duty to warn under W. Va. Code §…”
Bator v. Microtel Inn & Suites by Wyndham, No. 3:19-cv-01959 (M.D. Pa. Dec. 12, 2023). · cites it 3× “See W.Va. Code § 55-7-28. This statute provides in negligence actions, a property owner owes no duty of care to persons for lopen and obvious dangers.”
Show all 20 citing cases →
W. Va. Code § 55-7-28(a): 8 cases
Joey J. Butner v. Highlawn Mem'l Park Co., 881 S.E.2d 390 (W. Va. 2022). “We disagree with the court’s analysis, which turns the open and obvious danger doctrine inside out and creates a lose-lose proposition for any plaintiff: if the plaintiff can see or otherwise perceive the danger, he or she loses because the danger is open and obvious; and if the…”
Gable v. Gable, 858 S.E.2d 838 (W. Va. 2021). “]” W. Va. Code § 55-7-28 (a) (2015). The defendant suggested that, factually, the plaintiff might say in his case that “repair work was being performed on the porch” and say that the porch was “covered in paint” and “paint flakes” so as to have “made the debris on the steps…”
Joey J. Butner v. Highlawn Mem'l Park Co., 881 S.E.2d 390 (W. Va. 2022). “1 W. Va. Code § 55-7-28 (a) (emphasis added).”
Regina A. Drew v. Dillons Furniture, No. 20-0842 (W. Va. Mar. 7, 2022). “However, under the open and obvious doctrine, which was legislatively established in West Virginia Code § 55-7-28, [a] possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious,…”
Elizabeth Smith v. Nicholas Old Main Found., No. 19-0105 (W. Va. May 26, 2020).
W. Va. Code § 55-7-28(c): 3 cases
Valerie Tabit v. Kroger Grp. Coop., Inc., No. 18-0287, 2019 WL 517823 (W. Va. Feb. 11, 2019).
Joey J. Butner v. Highlawn Mem'l Park Co., 881 S.E.2d 390 (W. Va. 2022). “1 W. Va. Code § 55-7-28 (a) (emphasis added).”
Vickie Spenard v. Specialized IRA Servs. FBO Account 103-206 & Prop. Connection, LLC, No. 24-ica-93 (Dec. 23, 2024). “” W. Va. Code § 55-7-28 (c). Here, Ms. Spenard argues that the record established that respondents were aware of the missing handrail and chose not to install one despite knowing it was required by City Code.”
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