You are here: / / Condition of Fence Gate “Open and Obvious” Precluding Recovery

Condition of Fence Gate “Open and Obvious” Precluding Recovery

Plaintiff was injured when, sitting on the ground, he leaned back against a fence-gate which swung open causing him to fall.  The First Department determined the condition of the fence was “open and obvious” precluding recovery (there was a dissent).  The court wrote:

Although property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware …, they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous … . “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” …Here, defendant … established prima facie that the unlocked gate that allegedly caused plaintiff to injure himself was open and obvious, and was not inherently dangerous. The color photographs in the record show that the gate was “plainly observable and did not pose any danger to someone making reasonable use of his or her senses” … .  Boyd v New York City Hous Auth, 2013 NY Slip Op 02507, 9724, 310500/10, 2nd Dept 4-16-13

 

You might also like
Level Three Forcible Stop Not Justified, Convictions Reversed—Prior Arrest of One of the Defendants and the Fact that Both Defendants Were Running While Looking Back Over their Shoulders Was Not Enough to Justify the Forcible Stop
Cumulative Effect of Several “Suggestive” Factors Rendered the Show-Up Identification Inadmissible
Concise Example of a Weight of the Evidence Review
PURSUANT TO THE DOCTRINE OF TAX ESTOPPEL, TAX FORMS SIGNED BY DECEDENT INDICATING PROPERTY WAS TRANSFERRED WITHOUT CONSIDERATION PRECLUDED THE CONSTRUCTIVE TRUST CAUSE OF ACTION BASED UPON AN ALLEGED PROMISE TO PAY PETITIONERS PROCEEDS FROM THE SALE (FIRST DEPT).
OUT OF POSSESSION LANDLORD MAY BE LIABLE IN THIS SIDEWALK SLIP AND FALL CASE PURSUANT TO A 2019 COURT OF APPEALS DECISION; VIOLATION OF NYC ADMINISTRATIVE CODE CAN BE RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT MOTION; QUESTION OF FACT ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS DOCTRINE (FIRST DEPT). ​
JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND VACATED THE DEFAULT JUDGMENT, ALTHOUGH A SUA SPONTE ORDER IS NOT APPEALABLE AS OF RIGHT, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT). ​
Statement Protected by “Common Interest Privilege,” Tortious Interference Action Can Only Be Brought Against a Stranger to the Contract
NYU SUFFICIENTLY ALLEGED AN INJURY-IN-FACT ENTITLING IT TO LITIGATE THE CONSTITUTIONALITY OF A NYC ZONING RESOLUTION PROHIBITING THE CONSTRUCTION OF CLASSROOMS AND DORMITORIES IN THE SPECIAL DISTRICT; THERE WAS A COMPREHENSIVE DISSENT (FIRST DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Failure of Freezer to Properly Cool Baked Goods Was an “Occurrence” (I.e.,... No Common Law Negligence Cause of Action to Recover for Injuries Caused by Dog,...