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EXPOSED TREE ROOT OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS. ​

The Second Department determined an exposed tree root was an open and obvious condition. Plaintiffs’ slip and fall complaint was properly dismissed:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property”… . However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the tree root was an open and obvious condition and inherent or incidental to the nature of the property, and was known to the injured plaintiff prior to the accident … . . In opposition, the plaintiffs failed to raise a triable issue of fact. Commender v Strathmore Ct. Home Owners Assn., 2017 NY Slip Op 0519, 2nd Dept 6-28-17

 

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