The Second Department, reversing Supreme Court, determined the leg of a large decorative throne in defendant’s bar was open and obvious and therefore was not an actionable tripping hazard:
… [T]he defendant established … that the large decorative throne that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous … . “‘[T]here is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses'” … . “‘A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident'” … . “‘The determination of [w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case'” … .
Here, … the alleged defective condition was readily observable by those employing the reasonable use of their senses and was not inherently dangerous. The deposition testimony of a pianist who had performed at the bar for more than 20 years established that the throne was a novelty of the establishment, which drew in patrons. Further, the plaintiff’s own testimony established that he was aware of the throne, as he frequented the establishment and purported to have previously complained to the manager about its location … . Rider v Manhattan Monster, Inc., 2022 NY Slip Op 05048, Second Dept 8-24-22
Practice Point: Here plaintiff allegedly tripped over the leg of a large decorative throne in defendant’s bar. The throne was a readily observable novelty which drew patrons to the bar. Plaintiff frequented the bar and was well aware of the location of the throne. Because the throne was open and obvious it did not constitute an actionable tripping hazard.