The First Department determined defendant’s motion for summary judgment was properly denied. Defendant (Schindler) failed to secure a seven-foot wooden panel which apparently fell and injured plaintiff. The court noted that the open and obvious nature of the panel eliminated the duty to warn but not the duty to make the premises safe:
Schindler’s arguments that the wooden panel that its workers leaned against the wall was open and obvious, that plaintiff failed to use her senses to observe it, and that any barricades or warnings would not have prevented the accident, are unpreserved as they were not presented to the motion court … . In any event, we would find such arguments unavailing because even if a hazard is open and obvious, that merely eliminates the duty to warn, but not the duty to maintain the premises in a reasonably safe condition … . Here, it is undisputed that Schindler’s employees failed to secure the seven-foot tall wooden panel that they leaned against the wall or create a perimeter around it to prevent others from entering the area. Polini v Schindler El. Corp., 2017 NY Slip Op 00254, 1st Dept 1-12-17
NEGLIGENCE (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/OPEN AND OBVIOUS (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/WARN, DUTY TO (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)