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Questions of Fact Whether Picnic Table Near the Edge of a Porch Was a Dangerous Condition and Whether the Condition Was Open and Obvious

The Third Department determined questions of fact had been raised about whether defendant created a dangerous condition in placing a picnic table near the edge of a porch that had no railing and whether the condition was open and obvious.  Plaintiff got up from the picnic table and fell off the edge of the porch, which was less than 29 inches from the ground (it was alleged no railing was required by the applicable codes):

…[The]evidence is sufficient to raise issues of fact as to whether defendant created a dangerous condition by negligently placing the picnic table close to the porch’s edge and failing to demarcate or guard this ledge … . Factual issues also exist as to whether defendant’s negligence, if any, was the proximate cause of Hannah’s injury, as this is not a case “‘where only one conclusion may be drawn from the established facts'” … .

Defendant also claims that it had no duty to warn of the alleged dangerous condition created by the unguarded drop-off at the porch’s edge, as any such hazard was open and obvious as a matter of law. “It is axiomatic that a landowner has no duty to warn of an open and obvious condition that is readily observable by the normal use of one’s senses, and this postulate applies to adults and minors alike” … . However, a landowner [*3]has a duty to warn against even known or obvious dangers where he or she “has reason to expect or anticipate that a person’s attention may be distracted, so that he or she will not discover what is obvious, or will forget what he or she has discovered, or fail to protect himself or herself against it” … . Here, upon considering all of the surrounding circumstances, including the nature and layout of the event being hosted by defendant …, we find that triable issues of fact exist as to whether the drop-off constituted an open and obvious hazard such that defendant was relieved of its duty to warn … . Jankite v Scoresby Hose Co, 2014 NY Slip Op 05390, 3rd Dept 7-17-14

 

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