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THE DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE THE FLOWER POT OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE CIRCUMSTANCES OF THE ACCIDENT RAISED A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate the flower pot over which plaintiff tripped was open and obvious and not inherently dangerous:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell over a white flowerpot located next to a white column on the landing of premises owned by the defendant. At her deposition, the plaintiff testified that, on the day at issue, she was standing on the landing outside the defendant’s front door speaking with the defendant, who was standing in the doorway. The plaintiff testified that when the defendant moved the outer screen door toward her, she stepped back into the object, lost her balance, and fell from the landing. …

… “[W]hether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “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” … . Therefore, “[w]hether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury” … .

… [T]he defendant failed to establish … the alleged condition was open and obvious and not inherently dangerous under the circumstances surrounding the accident … . Evans v Fields, 2023 NY Slip Op 03000, Second Dept 6-7-23

Practice Point: When defendant property owner opened the screen door, plaintiff stepped back, tripped on a flower pot and fell down the stairs. Under the circumstances, there is a question of fact whether the flower pot was open and obvious and not inherently dangerous.

 

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