Slip and Fall cases and “open and obvious” conditions
Wednesday, August 5th, 2009A landowner “must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Peralta v Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 [2003], quoting Basso v Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976]). “Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally. The scope of any such duty of care varies with the foreseeability of the possible harm” (Tagle v Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001]).
The defendant in Zimkind v Costco Wholesale Corp., 12 A.D.3d 593, 785 N.Y.S.2d 108 (2nd Dept. 2004) submitted photographic evidence of the subject condition and affirmatively demonstrated that it was not inherently dangerous. The plaintiff in that case tripped over a concrete wheel stop in the defendant’s parking lot. The Court held that based upon the evidence submitted, there was considerable proof that the condition itself was not inherently dangerous and it was open and obvious as well. As such, the defendant owed no duty to that particular plaintiff. In this case, as in Zimkind, the Court is obligated to search defendant’s motion to ascertain whether it demonstrated affirmatively that the condition was both open and obvious under the circumstances, and if so, further demonstrate that it was not inherently dangerous. In the instant case, defendant did neither thing. Defendant’s counsel’s affidavit that the condition was open and obvious proved nothing See, Salas v Town of Lake Luzerne, 265 A.D.2d 770, 770, 696 N.Y.S.2d 314 (3rd Dept. 1999); see also, Wright v Rite-Aid of NY, Inc., 249 A.D.2d 931, 932, 672 N.Y.S.2d 548 (4th Dept. 1998); Hodgson, Russ, Andrews, Woods & Goodyear v Roth, 186 A.D.2d 1001, 1002, 590 N.Y.S.2d 817 (4th Dept.1992). In brief, the motion must be supported by a an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof. “S.J. Capelin Associates, Inc. v Globe Manufacturing Corp., 34 N.Y.2d 338, 341, 313 N.E.2d 776, 357 N.Y.S.2d 478 (1974).
It is axiomatic that a landowner’s responsibility is to assure that the conditions on his property are reasonably safe. Basso v Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976); Rovegno v Church of the Assumption, 268 A.D.2d 576, 576, 703 N.Y.S.2d 496, 497 (2nd Dept. 2000); Kurshals v Connetquot Central School District, 227 A.D.2d 593, 593, 643 N.Y.S.2d 622, 623 (2nd Dept. 1996). Specifically, the Basso Court stated that[i]ndeed as the duty was so clearly stated in Smith v. Arbaugh’s Rest. [152 U.S. App. D.C. 86, 469 F.2d 97, 100 [D.C. Cir. 1972]]: “A landowner must act as a reasonable man in maintaining his [*5] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk”.
Basso, 40 N.Y.2d at 241, 352 N.E.2d at 872, 386 N.Y.S.2d at 568; Kurshals, 227 A.D.2d at 593, 643 N.Y.S.2d at 623 (2nd Dept. 1996); Rovengno, 268 A.D.2d at 576, 703 N.Y.S.2d at 497 (2nd Dept. 2000).
Whether or not the condition itself was open and obvious, that does not absolve the defendant from its duty to reasonably maintain the premises. As expressed in Cupo v Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40 (2nd Dept. 2003), once a plaintiff presents evidence of a dangerous condition, the burden shifts to the landowner to demonstrate that he acted with reasonable care to make the property safe based upon the likelihood of injury to others and the burden of avoiding the risk. Whether a condition is open and obvious has nothing to do with this duty. The duty is not abrogated by the characterization of the hazard as open and obvious since by doing so leads to the ridiculous result of encouraging landowners to make hazards on their properties as dangerous as possible to avoid liability if someone is injured as a result of that hazard. See, Id.
In Stern v Ofori-Okai, 246 A.D.2d 807, 808, 668 N.Y.S.2d 68 (3rd Dept. 1998), the Court held that even awareness of a hazardous condition does not absolve a landowner from liability in maintaining its premises, but is relevant only on the issue of comparative negligence. In Morgan v Genrich, 239 A.D.2d 919, 659 N.Y.S.2d 638 (4th Dept. 1997), the Court held that the fact that a hazard is readily observable “may be relevant on the issue of plaintiff’s comparative negligence, but it does not negate the duty of the defendants to keep their premises reasonably safe.” Id. at 920; see, Chambers v Maury Povich Show, 285 A.D.2d 440, 440, 726 N.Y.S.2d 725 (2nd Dept. 2001) and Acevedo v Camac, 293 A.D.2d 430, 431, 740 N.Y.S.2d 380 (2nd Dept., 2002).As the First Department expressed in Westbrook v WR Activities-Cabrera Markets, 5 A.D.3d 69, 773 N.Y.S.2d 38 (1st Dept. 2004), the issue of whether a condition is open and obvious is generally a jury question and should only be resolved as a matter of law when the facts compel such a conclusion. See, Id. at 72. For a condition to be open and obvious as a matter of law requires that it could not be overlooked by anyone making a reasonable uses of his senses. See, Garrido v City of New York, 9 A.D.3d 267, 268, 779 N.Y.S.2d 208 (1st Dept. 2004).
Furthermore, the extent to which a defect is open and obvious addresses the issue of plaintiff’s comparative negligence, not the defendant’s overall duty to maintain its premises in a reasonably safe condition. See, Acevedo, 293 A.D.2d at 431.
An example given by the Westbrook Court included a case (Thornhill v Toys “R” Us NYTEX, 183 A.D.2d 1071, 583 N.Y.S.2d 644) where summary judgment was denied to a defendant when a plaintiff [*6] tripped over a raised platform in a department store, despite the fact that the plaintiff initially noticed the platform and avoided it, given that the photographs demonstrated that the platform itself was not readily discernible.
The 1st Department Court found that plaintiff’s striking her head on a standpipe which extended horizontally from a building was not an open and obvious hazard since the sun glare prevented her from seeing the object, since some hazards due to their nature of location, are likely to be overlooked. See, Juoniene v HRH Construction Corp., 6 A.D.3d 199, 774 N.Y.S.2d 525 (1st Dept. 2004) at 200-201.
Plaintiff tripped over a broken and fallen construction sign which was on the sidewalk. The sign was 6′ long and 4′ high lying on the ground. The Court reversed the trial court’s decision to grant summary judgment noting that while the sign itself was clearly visible, the plaintiff’s failure to observe it was relevant only to the issue of plaintiff’s comparative negligence, and not the defendant’s overall duty to reasonably maintain the sidewalk. See, Garrido v City of New York, 9 A.D.3d at 267, 268; 779 N.Y.S.2d 208 (1st Dept. 2004).
A plaintiff was injured when she tripped over a wooden pallet placed by defendant on the floor between two tables displaying merchandise. The Court held, in reversing the lower court’s decision to grant defendant a judgment on the law at the close of plaintiff’s case, even if a jury found the pallet to have been open and obvious, it was relevant only to comparative negligence and a rational jury may not completely absolve the defendant from liability. In the instant case, the issue of whether the stacked box was open and obvious is a jury question, and even an affirmative determination that it was open and obvious does not absolve defendant from liability. Moloney v Wal-Mart Stores, Inc., 2 A.D.3d 508, 767 N.Y.S.2d 897 (2nd Dept. 2003)
Plaintiff attempted to maneuver around a plant display placed by defendant, and in so doing, her shopping cart’s wheel went off the curb and caused her to fall and be injured. The Court held that defendant created the condition by placing and arranging the plant display and the issue of whether the perils of the aisle were open and obvious was best left for jury determination. See, Monge v Home Depot, Inc., 307 A.D.2d 501, 761 N.Y.S.2d 886 (3rd Dept. 2003) at 502; See also, De-Conno v Golub Corp., 255 A.D.2d 734, 735, 680 N.Y.S.2d 727 (3rd Dept. 1998) (plaintiff, who tripped on a cone placed by defendant in an aisle of one of its stores, was entitled to a jury trial and denial of summary judgment by defendants since the placement of the cone and its obscuring by customers and other merchandise stacked nearby, created an issue of fact).
Moreover, even if the condition was open and obvious, the question remains whether it was inherently dangerous and whether plaintiff bears any responsibility for the accident’s occurrence. NY C.P.L.R. § 1411 states as follows: In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.
Plaintiff tripped and fell when her lower right leg struck a shelf protruding into an aisle of defendant Food Mart as she was passing an employee of defendant food supplier who was stocking merchandise on the store’s shelves. Defendants moved for summary judgment, and the trial court denied the motion as to both defendants. The Court affirmed regarding defendant Food Mart but modified as to defendant Troyer. Food Mart had asserted that the condition was open and obvious, but the Court found that the shelf that had allegedly caused plaintiff to trip was near floor-level and protruded only three to four inches. Both plaintiff and defendants’ employees also stated that they did not see what plaintiff had tripped on. The Court said even if the shelf was readily observable, such a fact would go to the issue of comparative negligence and would not negate the duty of defendants to keep their premises reasonably safe. Summary judgment as to these defendants was thus improper. See, Patterson v Troyer Potato Products, Inc., 273 A.D.2d 865, 709 N.Y.S.2d 731 (3rd Dept. 2000).