Open and Obvious Defense Clarified in a Case of Optical Confusion

If I had a dollar for every time a defendant argued in a summary judgment motion that it was not negligent because the condition that caused my client’s accident was open and obvious. With words that every defense counsel (and Judge) should never overlook, the Appellate Division, First Department opened a recent opinion with the sentence: In this personal injury action, we reiterate the well-established principle that a finding of open and obvious as to a hazardous condition is never fatal to a plaintiff’s negligence claim. It is relevant only to plaintiffs comparative fault. Saretsky v. 85 Kenmare Realty Corp., 2011 WL 1796367 (May 12, 2011). Even though this is not a new law, you would be surprised how many times cases are dismissed solely because the condition is open and obvious. What is often overlooked is that although there is no duty to warn where a dangerous condition is open and obvious, the absence of the duty to warn does not vitiate the duty to maintain premises in a reasonably safe condition. So while the defendant cannot be held liable for failing to warn of a condition that is open and obvious, a defendant can be held liable for breaching his duty to properly maintain his property. In Saretsky, the plaintiff was injured when she fell off a raised walkway situated on the public sidewalk in front of the defendants building after exiting the codefendant store-owners shop. The plaintiff described the walkway as extending about 4 feet out from the face of the building and ending at a transition step approximately five inches high in the center of the sidewalk. The plaintiff alleged that the defendants were negligent in failing to make repairs to a hazardous condition, and in failing to provide any warning, visual cues, barriers, handrails or other devices. The defendants argued that the transition step from the walkway to the sidewalk is open and obvious and that plaintiffs inattention was the sole proximate cause of her fall. Significantly, the Saretsky decision noted that even visible hazards do not necessarily qualify as open and obvious because of the nature or location of some hazards, while they are technically visible, make them likely to be overlooked. The plaintiff successfully persuaded the court to accept her theory of optical confusion. The affidavit of plaintiffs expert engineer stated that the concrete on the sidewalk and the walkway were similar shades of gray. He also noted that although the edge of the walkway was painted with a red line on the surface of the transition riser and upper horizontal edge, the paint in front of the defendant’s store was very worn. He opined that the failure to maintain the red stripe on the walkway was a predominant factor in the plaintiffs fall. It is further undisputed that there were no warning signs, handrails or barricades in the area indicating a change in elevation. Also, significant in Saretsky is the manner in which the court explained that a plaintiffs testimony that she did not see the condition that caused her accident does not necessarily mean that the plaintiff was not paying attention or not looking. The appellate court was critical of the motion court for mischaracterizing the plaintiff’s testimony. The motion court granted the defendants motions and dismissed the complaint on the grounds that the plaintiff failed to rebut her sworn testimony that she fell because she wasn’t looking. The motion court adhered to its prior decision when plaintiff moved to renew and reargue and offered, inter alia, the affidavit of her expert engineer. The appellate court reversed holding that not only did the motion court mischaracterize plaintiffs testimony, but its implicit conclusion, that had plaintiff been looking she would have seen the hazard and avoided injury, was premised on a finding that the transition step to the sidewalk was open and obvious. The lawyers at Levine & Slavit have decades of experience handling personal injury claims. For over 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens, and surrounding areas. If you or someone close to you has been injured in a motor vehicle accident, contact the personal injury lawyers at Levine & Slavit for their help.

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