Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/12/Steven-Lore-v.-Fitness-International-LLC.pdf">Steven Lore v. Fitness International LLC</a>, </em>2022 NY Slip Op 06922 (2d Dept. 2022), plaintiff sued his gym alleging serious injury from a trip and fall inside one of its showers in the locker room. Specifically, the injury occurred because of a single step riser 4 ½ inches in height. Following discovery, defendant gym owner filed for summary judgment arguing that the condition was open and obvious to the plaintiff, and not an inherently dangerous condition. Plaintiff opposed the motion arguing poor lighting made it difficult to see the shower riser. The trial court granted summary judgment to defendants, and the Second Department reversed that decision.

While it is true that there is no duty to protect or warn a public against an open and obvious condition that, as a matter of law, is not inherently dangerous, the Appellate Court reasoned that the issue of open and obvious should take into consideration the surrounding environment (<em>Sebagh v Capital Fitness, Inc</em>., 202 A.D.3d 853, 855; <em>Lazic v Trump Vil. Section 3, Inc</em>., 134 A.D.3d at 776; <em>Kernell v Five Dwarfs, Inc</em>., 207 A.D.3d 622). The Appellate Court also held that determining "whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for the jury" (<em>Lazic v Trump Vil. Section 3, Inc</em>., 134 A.D.3d at 776; <em>Liriano v Hobart Corp.</em>, 92 N.Y.2d 232, 242). Here, the Appellate Court held the plaintiff’s argument that the lighting condition was poor and made the condition difficult to see was enough to deny dismissal and take the claim to a jury.

The Appellate Court’s decision emphasized the difficulty of sustaining a dismissal on the basis that a condition was open and obvious and not inherently dangerous to the public. In order to sustain such a dismissal at summary judgment, there can be no other factors that could lead to the obfuscation of the alleged condition, <em>i.e.</em> poor lighting, no warning signs, out of place condition. One way to avoid this liability would be to clearly articulate the condition on the property, so that there is no argument that it was hidden or not visible to the naked eye. Otherwise, the court will determine the analysis to be fact-specific and leave it as a triable issue of fact for a jury.

Thanks to Raymond Gonzalez for his assistance with this post.  Should you have any questions, please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.