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FOOT OF A DECORATIVE FENCE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AS A MATTER OF LAW.

The Second Department determined the foot of a decorative fence over which plaintiff tripped was open and obvious as a matter of law and not actionable:

While a landowner has a duty to maintain its premises in a reasonably safe condition … , “there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” … . “While the issue of whether a hazard is . . . open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence” … .

Here, the defendants established, prima facie, that the fence, including the “leg” or foot of the fence, was open and obvious, as it was readily observable by those employing the reasonable use of their senses and, as a matter of law, was not inherently dangerous … .

In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to her contention, she did not raise a triable issue of fact as to whether the foot of the fence constituted a “trap for the unwary” because it was somehow obscured … . Gerner v Shop-Rite of Uniondale, Inc., 2017 NY Slip Op 02407, 2nd Dept 3-29-17

 

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