top of page


Open And Obvious Danger Leaves Plaintiff In the Pit (NY)

August 26, 2022

Share to:

<p style="text-align: justify;">In<em> <a href="">Lebron v. City of New York</a></em>, NY Slip Op 04960 (2<sup>nd</sup> Dept. 2022), a claim was filed by plaintiff when he fell into an inspection pit for vehicles at the garage facility operated by the New York City Taxi &amp; Limousine Commission. Defendants moved for summary judgment arguing that the condition was an open and obvious defect and it did not require any duty by the property owner to warn the public. “There is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous" (<em>Rosenman v Siwiec</em>, 196 A.D.3d 523, 524 [internal quotation marks omitted]; <em>see Cerrato v Jacobs</em>, 173 A.D.3d 1134, 1135; <em>Schiavone v Bayside Fuel Oil Depot Corp.</em>, 94 A.D.3d 970, 971; <em>Rivas-Chirino v. Wildlife Conservation Socy.</em>, 64 A.D.3d 556, 557), or "where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it" (<em>Cerrato v Jacobs</em>, 173 AD3d at 1135; <em>see, Torres v State of New York</em>, 18 AD3d 739).</p>
<p style="text-align: justify;">The City however argued that an inspection pit in a taxi facility would be considered an inherent part of the nature of the property. Although the trial court judge rejected defendants’ argument, the Second Department overturned and granted summary judgment dismissal to the City. The judge’s panel felt that the inspection pit was an open and obvious condition that was not inherently dangerous because of the nature of the facility, and plaintiff’s expert affidavit in opposition failed to specify any violation of an applicable statute or relevant industry standard showing the City’s negligence. The takeaway from this case is that the open and obvious standard is fluid and applicable on a case-by-case basis. Under any other circumstances, a large hole in the ground without any perimeter guard or fence would be considered dangerous, except in a taxi garage setting where one would expect to find it.</p>
<p style="text-align: justify;">Thanks to Ray Gonzalez for his assistance with this post.  Should you have any questions, please contact <a href="">Tom Bracken</a>.</p>


bottom of page