The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case. Plaintiff tripped on a dolly or “pallet jack” which was low to the ground and had been left in an aisle of defendants’ store. The fact that the presence of the dolly was open and obvious did not eliminate the defendants’ obligation to keep the premises safe:
Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition … . While such proof is relevant to the issue of the plaintiff’s comparative negligence, a hazard that is open and obvious “may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted” … . “The determination of [w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances'” …, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case … .
Here, the defendants contend that, even if they created the condition at issue, they are entitled to judgment as a matter of law because the pallet jack in the aisle was an open and obvious condition, and not inherently dangerous. However, viewing the evidence in the light most favorable to the plaintiff, the defendants failed to eliminate all triable issues of fact as to whether the pallet jack was inherently dangerous …, and failed to establish prima facie that they maintained the premises in a reasonably safe condition… . Russo v Home Goods, Inc, 2014 NY Slip Op 05529, 2nd Dept 7-30-14