You are here: / / Defendant Not Entitled to Dismissal of Complaint On Ground that Condition...

Defendant Not Entitled to Dismissal of Complaint On Ground that Condition of the Property Was Open and Obvious

The Second Department determined defendant was not entitled to summary judgment dismissing the complaint on the ground that the condition causing plaintiff’s injury was open and obvious. Plaintiff stepped back when fireworks were being set off in defendant’s yard. Plaintiff tripped on blocks forming a border around a tree and was impaled on a wooden stake within the border. The Second Department also determined the defendant was not entitled to dismissal of the negligent supervision cause of action (re: third persons setting off fireworks):

A property owner is charged with the duty of maintaining its premises in a reasonably safe condition … . A property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . The issue of whether a dangerous condition is open and obvious is also fact-specific, and usually a question of fact for a jury to resolve … . Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances … . A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted …. .The evidence relied upon by the defendant in support of his motion, which included the photographs attached to his affidavit as well as the parties’ deposition testimony, did not establish his prima facie entitlement to judgment as a matter of law by demonstrating that the subject condition was open and obvious under the circumstances of this case… . Pelligrino v Trapasso, 2014 NY Slip Op 01304, 2nd Dept 2-26-14

 

You might also like
ABSENT SELF-INTEREST OR SELF-DEALING, AN ATTORNEY CAN NOT BE LIABLE TO A THIRD PERSON FOR INDUCING THE CLIENT TO BREACH A CONTRACT WITH THAT THIRD PERSON (SECOND DEPT).
BENEFICIARIES OF ESTATE DID NOT HAVE STANDING TO BRING AN ACTION TO PRESERVE AN ESTATE ASSET, ONLY THE PERSONAL REPRESENTATIVE OF THE ESTATE HAS THAT POWER.
PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741.
PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL.
“Economic Necessity” Justified Relocation
PLAINTIFFS REQUESTED GENERAL LIABILITY INSURANCE WHICH WAS PROCURED BY THE BROKER; THE BROKER WAS NOT UNDER A DUTY TO ADVISE, GUIDE OR DIRECT PLAINTIFFS TO OBTAIN ADDITIONAL COVERAGE (SECOND DEPT).
FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).
AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S PERSON AFTER A TRAFFIC STOP WAS BASED UPON THE ODOR OF MARIJUANA; THE OFFICER DID NOT TESTIFY HE WAS QUALIFIED BY TRAINING AND EXPERIENCE TO RECOGNIZE THE ODOR OF MARIJUANA; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND 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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Father Demonstrated Child Was Constructively Emancipated/Child Support Obligation... Height Differential Between Concrete Slabs in Sidewalk “Trivial” As a Matter...