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Plaintiff’s Pothole Predicament Prevails on Appeal (NY)

August 15, 2019

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<p style="text-align: justify;">In<em> <a href="">Karpel v National Grid Generation LLC</a></em>, plaintiff alleged a trip and fall over a raised edge in the roadway. At the time of the fall, excavation work was being done in the vicinity. After discovery, the defendants moved for summary judgment arguing that the alleged defective condition was trivial and therefore not actionable, or was open and obvious and not inherently dangerous. The Supreme Court granted the defendants’ motion, and the plaintiff appealed.</p>
<p style="text-align: justify;">The Appellate Division Second Department overturned the lower court’s decision. The Appellate Division held that defendants did not meet their prima facie burden. A defendant seeking dismissal of a negligence complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it posed.</p>
<p style="text-align: justify;">The hole measured approximately four-feet wide, eight-feet long, and at least one-inch deep. Although there were orange markings around its perimeter, the Court found the argument unconvincing. “Proof that a dangerous condition is open and obvious does not preclude a finding of liability ... but is relevant to the issue of the plaintiff's comparative negligence.” The Court held the hole was inherently dangerous, even if open and obvious, and therefore, not sufficient to be granted summary judgment.</p>
<p style="text-align: justify;">Thanks to Paul Vitale for his contribution to this post.  Please contact <a href="">Georgia Coats</a> with any questions.</p>

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