First, teach the jury the difference between visibility and conspicuity. Visibility means you can see the hazard if you look at it. Conspicuity is the competition for a person’s attention that naturally occurs, because there are always all kinds of things all around inviting us to look at them. Just because something can be seen, doesn’t mean it will be seen, unless the person’s attention is drawn to it.
Next, teach the jury about exciter colors. A tripping hazard should be fixed. In the meantime, paint it red or yellow, because those colors increase the likelihood of the hazard winning the ongoing competition for attention. (A human factors expert can teach these points, or you can inject them through voir dire by asking about experiences with the concepts.)
Remind the jury that the defense has the burden of proof on their claim that Ms. Jones was at fault. It is not enough for them to say she could have seen the hazard. It’s not enough for them to say someone else would have seen the hazard. The defense has to prove our client did something wrong, they have to prove she did something unreasonable.
Explain that circumstances matter. If someone is walking in a junkyard with broken glass and debris scattered all over the ground, the person should stare at the ground and watch every step, as if they were walking through a minefield. The same is true when someone walks across a field with cactus everywhere. Those are completely different situations than walking on a sidewalk, which is a place where the ground is supposed to be safe. On a sidewalk, people don’t stare at the ground, watching every step, they could run into something, or someone else. When a person walks in a place that should be safe, there is nothing wrong with having their attention drawn to things other than the ground, it is not misbehavior, it is human behavior. (You can make the same argument for walking on a parking lot, or inside a store.)
Then, turn open & obvious against the defense. Point out that “visibility” of the hazard actually proves the defendant is at fault. As the owner, it was their job to hunt for and deal with dangerous conditions on the ground. Conspicuity doesn’t come into play with them, because they have a duty to look down. We know they didn’t do their job, because, had they, the danger would have been found and fixed. The defendant either didn’t look, or did, and chose to do nothing about it.
In closing, finish with something like: Please bring back a verdict that says Ms. Jones did nothing wrong; a verdict that says the defendant is responsible for ignoring that dangerous condition until someone got hurt. Please bring back a verdict that recognizes the magnitude of Ms. Jones’ injuries.