Wade Clark Mulcahy LLP

Generally, a New York landowner has a duty to maintain his or her property in a reasonably safe condition. However, there is no duty to warn of or protect against conditions that are not inherently dangerous and are “open and obvious.” A condition is deemed “open and obvious” if it is readily observable by those reasonably using their senses given the surrounding conditions at the time of the alleged accident. The resolution of this issue depends on the specific facts of each case.

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/02/Martinez-v.-Fairfield-Hills-E.-LLC.pdf">Martinez v. Fairfield Hills E., LLC</a>,</em> the Appellate Division, Second Department recently addressed these issues in a case where plaintiff alleged that she was injured while descending exterior steps on the defendant’s premises. The lower court granted the defendant’s motion for summary judgment, finding that the condition of the step upon which the plaintiff allegedly fell was both open and obvious and not inherently dangerous.

The Second Department affirmed, finding that that the condition of the step was readily observable had plaintiff reasonably used her senses given the conditions at the time of the alleged accident. The Court based this holding on plaintiff’s deposition testimony in which she stated that she ascended the step moments before her alleged accident without incident, that the accident took place on a sunny day, and there was nothing obstructing her view of the step.

The takeaway from <em>Martinez</em> is that premises defendants should explore an “open and obvious” defense where the allegedly dangerous condition was readily observable to a plaintiff at the time of his or her alleged accident and plaintiff had used that part of the property before without incident.

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