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Open and Obvious Not Obvious Enough (NY)

May 11, 2016

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Business owners have a duty to keep their premises safe and secure, and to protect invitees from potential hazards. One of the primary defenses in premises liability matters is that plaintiff was injured by an “open and obvious” condition, meaning a condition readily viewable by plaintiff.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/05/Johnson-Glover-v-Fu-Jun-Hao-Inc.pdf">Johnson-Glover v Fu Jun Hao Inc</a>.,</em> plaintiff alleged that she was injured when she tripped and fell on a pulley bag/wheeled shopping bag that had a protruding metal stand that was left in one of the aisles of defendant’s store. At her deposition, plaintiff testified the aisles in defendant’s store were full of merchandise—making it difficult to pass—but that she saw the wheeled shopping bag in the aisle before she tripped over it. Defendant moved for summary judgment, arguing that the wheeled shopping bag was an “open and obvious” condition for which it owed no duty to plaintiff.
The First Department upheld the denial of defendant’s motion for summary judgment. The court agreed with the defendant that the wheeled shopping bag, per plaintiff’s own testimony, was an “open and obvious” condition. However, while the court determined that defendant had no duty to warn plaintiff of the “open and obvious” condition, defendant failed to establish that it satisfied its obligation to maintain the store in a reasonably safe condition. The store manager’s deposition testimony that the store would occasionally leave merchandise in the aisles for several hours after a delivery raised an issue of fact as to whether defendant created the hazardous condition, and failed to establish that the store’s cleaning schedule deprived it of actual or constructive notice of the condition.
Thanks to Peter Luccarelli for his contribution.
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.

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