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LOCK BOX ON THE OUTSIDE OF A BUILDING ON WHICH PLAINTIFF STRUCK HIS HEAD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the key lock box on the outside of building, on which plaintiff struck his head, was open and obvious and not inherently dangerous:

The plaintiff alleges that …, as he was walking out of the defendants’ Wendy’s restaurant, he turned right and struck his head on a black Fire Department key lock box that was affixed to the exterior of the red brick wall of the building. The plaintiff commenced this action against the defendants, alleging negligence in, among other things, the maintenance of their premises. In his pleadings, the plaintiff alleged that the presence and positioning of the lock box on the exterior wall constituted a dangerous condition. …

On their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that the subject condition was both open and obvious, and not inherently dangerous  … . In opposition, the plaintiff failed to raise a triable issue of fact … . Erario v Wen Shirley, LLC, 2019 NY Slip Op 01059, Second Dept 2-13-19

 

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