“I fell in the parking lot of a bagel store that I frequently go to.  I tripped and fell on a piece of chain link fence that sticks out that I have walked by a thousand times with falling.  Can I still make a claim against the parking lot for my injuries?”

The short answer is yes. But as you have already figured out there will be some problems with your case.

The first issue is the size of this piece of fence.  If the broken fence piece is really small (say less than 1/2 inch), the owner of the parking lot can claim the legal defense that the condition is de minimus.  That is, no reasonable person could possible fall on such a small defect. If this broken fence piece is really big (say bigger than 6 inches) the owner of the parking lot can claim the legal defense of open and obvious.  That is, everybody who walks by the defect should see what was there to be seen and avoid the foot trap.

I am inferring from your question that your case is the second fact pattern I mentioned. Fortunatley for you, even if you knew about the condition and should have avoided it, you can legally claim that you had momentary forgetfulness about the broken fence and had tripped anyway.  It is not expected that a person will have to remember every time they walk that there is a known defect.  Sometimes people just don’t look and don’t remember a known hazard in their path.  It is up to the landowner to repair defects.

It is impossible for me to say how your case will turn out.  The Court of Appeals has been very explicit that there is no specific test to determine if a defect is too small or too obvious. There are many circumstances the court would consider, not just the size of the defect. You have a good legal argument for your case, but the parking lot owner also has a good legal argument as well.