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On The Fence: Jury To Decide Whether A Makeshift Fence Is An Open And Obvious Or Dangerous Condition (NY)

November 4, 2022

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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. Whether a condition is dangerous or defective is generally an issue of fact for the jury. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/11/Crowley-v.-585-Route-25A-Holding-LLC..pdf">Crowley v. 585 Route 25A Holding LLC.</a>,</em> Suffolk County Supreme Court addressed these issues in deciding whether a makeshift condition on a property constituted an open and obvious or dangerous condition.

Plaintiff sued the defendant for personal injuries after falling over a makeshift fence made of rubber water hose strung across wooden posts while attending a parade on defendant’s property. Plaintiff alleged that defendant caused or created a dangerous condition and that defendant’s negligence was the proximate cause of plaintiff’s injuries and damages. Plaintiff testified at deposition that it was his first time attending the parade at that specific location and that he did not see the hose prior to the accident. A defense witness testified that the makeshift fence was actually a “partition” that had been in place for at least five years before the accident.

Defendant moved for summary judgment, arguing that it did not have a duty to plaintiff since the makeshift fence was an open and obvious, and not inherently dangerous condition. Defendant further argued that its actions were not the proximate cause of plaintiff’s injuries. Plaintiff argued that fact questions as to these issues existed, so a trial was necessary.

The Court agreed with plaintiff and denied defendant’s motion for summary judgment, finding that the defendant failed to establish that the makeshift fence was an open and obvious and not inherently dangerous condition. Based on testimony that plaintiff was unable to see the rubber hose prior to tripping over it and was previously unaware of its existence, the Court found that a jury could reasonably conclude that the makeshift fence was a dangerous condition. The Court found that these were fact issues for a jury to decide.

The <em>Crowley</em> case demonstrates that even where a makeshift condition on a property might be obvious and easily seen, a New York court will leave the determination as to whether it is open and obvious or dangerous to a jury where testimony suggests that a plaintiff had no prior knowledge or awareness of the condition.

Thank you to Arianna Arca for her contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.

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