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ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. There was evidence a step leading to defendants’ premises was dangerous because there were no markings or differences in color between the step and the sidewalk:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the particular facts and circumstances of each case and is generally a question of fact for the jury” … . In view of the pertinent “factors that may render a physically small defect actionable” … , we conclude that … (defendants) failed to sustain their burden of establishing as a matter of law the absence of any defect with the step … . In any event, we conclude that, in opposition to the motion and cross motion, plaintiff raised a triable issue of fact concerning the existence of a defect by submitting evidence that there were no markings on the step or differences in color between the step and the sidewalk … . Furthermore, the step was located in or very near a doorway, “where a person’s attention would be drawn to the door, not to the [step]” … .

We further conclude that the court erred in determining that plaintiff’s inattention to the step upon exiting the premises was the sole proximate cause of her injuries as a matter of law inasmuch as defendants “failed to establish that plaintiff’s fall was unrelated to the alleged defect” … . Thus, “while plaintiff may have been comparatively negligent in failing to observe the step or in failing to remember that the step was there, any such comparative negligence would not serve to negate the liability of the . . . landowner[,] who has a duty to keep the premises safe’ ” … . Grefrath v DeFelice, 2016 NY Slip Op 07786, 4th Dept 11-18-16

 

NEGLIGENCE (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/SLIP AND FALL (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/STEPS (SLIP AND FALL, ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)

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