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A Tree (Branch) Grows in Brooklyn

September 16, 2010

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In <i>Maldonado v. City of New York</i>, the plaintiff tripped and fell over a tree branch that was laying on the ground of a picnic area within Prospect Park in Brooklyn. The City moved for summary judgment arguing that the branch was open and obvious and not an inherently dangerous or defective condition. Plaintiff opposed the motion by arguing that while a condition may be open and obvious, it does not obviate the defendant’s duty, but merely creates a question of comparative negligence for a jury. In citing a prior decision, the court stated, "landowners will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.” Here, plaintiff testified that though she did not see the branch she tripped over, “we were surrounded by trees so you could see branches scattered around." Accordingly, the court granted the City’s motion holding that the branch, like the others scattered around, was “inherent or incidental to the nature of the property such that its presence could have been reasonably anticipated by the party using it."
Thanks to Cheryl Fuchs for her contribution to this post.
<a href="http://www.law.com/jsp/nylj/CaseDecisionNY.jsp?id=1202471963535">http://www.law.com/jsp/nylj/CaseDecisionNY.jsp?id=1202471963535</a>

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