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Court Sees Through Plaintiff's Claim of Optical Confusion (NY)


March 8, 2012 at 9:23:07 PM

In<a href=""> Hanger v. 116 Lexington Ave., Inc.</a>, plaintiff fell on a five-inch single step transition at the entrance to a second-floor banquet room at a restaurant in midtown Manhattan.  Plaintiffs' engineering expert opined that the similarity in the flooring of the hallway and the banquet room obscured the step.  However, defendants moved for, and were granted summary judgment, arguing that the step was not a latent dangerous condition, and even if it was, adequate warnings of the step were provided.

Plaintiff appealed, arguing that the motion court erred in dismissing their complaint because the conditions of the step area created "optical confusion," rendering the step dangerous.  Although a step may be dangerous where the conditions create optical confusion,  certain factors need to be considered.  Specifically, courts will look to the similarity in surface colors, and whether the edge of the step created the illusion of a level surface and if there were any signs warning of the step.

The Appellate Division found no “optical confusion” existed and affirmed the lower court’s ruling, as the step in question had four reflective strips positioned parallel to the step and a sign, which read "Step Down" with an arrow pointing diagonally downward toward the step.

Thanks to Joe Fusco for his contribution to this post.

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