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ONE INCH DEEP DEPRESSION IN THE ROADWAY WHICH WAS SURROUNDED BY ORANGE MARKINGS WAS NOT DEMONSTRATED TO BE TRIVIAL OR BOTH ‘OPEN AND OBVIOUS’ AND ‘NOT INHERENTLY DANGEROUS’ AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff was jogging when she tripped over a raised edge of a depression in the roadway. The defect was surrounded by orange markings:

The evidence demonstrated that [defendant] was in the process of restoring the excavated area in the location of the plaintiff’s accident and that the alleged defective condition measured approximately four-feet wide, eight-feet long, and at least one-inch deep. …

… A “condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted'”  … . Furthermore, “proof that a dangerous condition is open and obvious does not preclude a finding of liability . . . but is relevant to the issue of the plaintiff’s comparative negligence” … . “Thus, to obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous” … . Here, the defendants failed to establish, prima facie, that the alleged defect was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident … . Finally … , the doctrine of primary assumption of risk is inapplicable to this action … . Karpel v National Grid Generation, LLC, 2019 NY Slip Op 05651, Second Dept 7-17-19

 

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