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Open and Obvious Does Not Necessarily Result in Dismissal
September 15, 2010
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In <i>Sweeny v. Riverbay Corp</i>., the First Department reversed the lower court’s order that granted the defendant's motion for summary judgment. The plaintiff tripped and fell over a garden hose that had been placed across the sidewalk in front of a building that the defendant managed. Although the evidence established that the hose was an open and obvious hazard, the First Department held that there remained a question as to whether the defendant breached its duty to maintain the premises in a reasonably safe condition. Specifically, the record established that the hose might have been left on the sidewalk for a long enough period of time to establish notice. Thus, even if a condition is open and obvious, a defendant still has a duty to remove and/or remedy the condition once placed on notice of the hazard.
Thanks to Lora Gleicher for her contribution to this submission.
<a href="http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06549.htm">http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06549.htm</a>