Wade Clark Mulcahy LLP

It is well settled in New York that while an owner of real property has a duty to maintain a reasonably safe premises, it has no duty to protect or warn against open and obvious conditions that are not inherently dangerous. A defendant has the burden to prove both elements, and failure to do so will preclude summary judgment on the open and obvious defense.

The Appellate Division, Second Department recently addressed this issue in Butler v NYU Winthrop Hosp. In that case, the plaintiff was injured after her foot became entangled in medical equipment tubes and cords while visiting her son in the defendant’s hospital. The trial court granted the hospital’s summary judgment motion, in part, because it found that the alleged hazard was open and obvious and not inherently dangerous.  

The Second Department reversed and denied the hospital’s motion, finding that the hospital failed to establish, prima facie, that the condition of the tubes and wires were not open and obvious and not inherently dangerous under the circumstances. In so holding, the Court observed that a condition is open and obvious if it is readily observable by a person making reasonable use of their senses, given the conditions of the accident. A condition that is ordinarily apparent may be dangerous if it is obscured or the plaintiff is distracted.

The takeaway from Butler is that a defendant cannot assume that a condition causing an accident is open and obvious and not inherently dangerous simply because it can be seen. The Court in the case did not explain the hospital’s failure on the motion, but it is clear that a defendant must introduce concrete evidence to establish these elements of the defense in order to prevail on summary judgment.