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Surveillance Footage Key To Establishing Open And Obvious Defense (NY)

September 9, 2022

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<p style="text-align: justify;">New York courts generally hold that a landowner has no duty to warn of open and obvious dangers. In<em> <a href="">Lebron v. City of New York</a>,</em> the Appellate Division, Second Department recently addressed whether an inspection pit that plaintiff fell into on the defendants’ property was an open and obvious, and not inherently, dangerous. The defendants introduced surveillance of the accident as evidence of the nature of the condition, but the Supreme Court denied their motion for summary judgment.</p>
<p style="text-align: justify;">On appeal, the Second Department observed that: "A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property". However, "there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous" 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". Based on this framework and the evidence provided by the defendants, the Second Department reversed and held that the inspection pit that plaintiff fell into was an open and obvious condition and the Supreme Court should have granted defendants’ motion for summary judgment.</p>
<p style="text-align: justify;">The <em>Lebron</em> decision serves as a reminder that the open and obvious defense can serve as a complete defense in applicable cases and that video surveillance of an accident can be beneficial to establish this defense.</p>
<p style="text-align: justify;">Thank you to Corey Morgenstern for his contribution to this post. Please contact <a href="">Andrew Gibbs</a> with any questions.</p>


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