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No Picnic for Plaintiff - Tree Roots are Open and Obvious (NY)

October 4, 2018

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<p style="text-align: justify;">In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/10/Ibragimov-v-Town-of-N.-Hempstead.pdf">Ibragimov v Town of N. Hempstead</a>, </em>the plaintiff, while at a picnic at Whitney Pond Park in Nassau County New York, tripped on an exposed tree root and fell after getting up from a picnic table.  He filed a lawsuit in Nassau County Supreme Court against the Town of North Hempstead claiming the Town was negligent in the maintenance of the picnic area and the tree root was dangerous.</p>
<p style="text-align: justify;">The Town filed a motion for summary judgment, arguing that the lawsuit should be dismissed because exposed tree root was an open and obvious condition which was inherent or incidental to the nature of the property; and that the exposed tree root was not inherently dangerous.  The Supreme Court agreed with the Town of North Hempstead and granted the motion, dismissing the case.</p>
<p style="text-align: justify;">The plaintiff appealed the dismissal, and the Appellate Division, Second Department, reviewed the case.  The Appellate Division affirmed that a landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property.  However a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.  The Court ruled that the tree root fell within this principle, known as the “open and obvious” rule.   The Appellate Division agreed with the Supreme Court’s decision and affirmed the dismissal of the lawsuit based upon the open and obvious nature of the tree root in the picnic area of the park.</p>
Thanks to George Parpas for his contribution to this post.

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