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IN A SLIP AND FALL CASE, WHETHER THE CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE AND THE PROPERTY OWNER’S DUTY TO WARN, BUT DOES NOT SPEAK TO PROXIMATE CAUSE OR NEGLIGENCE; HERE THE IRREGULARLY-SHAPED LANDING AND ABSENCE OF A HANDRAIL VIOLATED THE CITY BUILDING CODE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fact that the condition (an irregularly-shaped landing) is open and obvious does not speak to proximate cause but may be relevant to plaintiff’s comparative negligence (which will not defeat a summary judgment motion).. Here there was evidence the landing and the lack of a handrail violated the NYC Building Code. Defendants’ motion for summary judgment should not have been granted:

Plaintiff … raised a material issue of fact as to whether the irregular shape and dimensions of the landing and the lack of a handrail were the causes of his fall through, inter alia, his testimony that the “shortness” and “angle” of the landing caused his ankle to roll and through his expert engineer’s unrebutted affidavit that the “irregular shape” and “shortness” of the landing, which was in violation of the City of New York Building Code, and the lack of a handrail, proximately caused the fall.

The lower court’s assessment that the landing’s purported dangerous defects were open and obvious has no bearing upon the central, threshold issue of whether there was a causal connection between the defects and the plaintiff’s injury … . Further, it is axiomatic that the open and obvious nature of a hazard pertains to an owner’s duty to warn of such danger but does “not eliminate a claim that the presence of the hazardous condition constituted a violation of the property owner’s duty to maintain the premises in a reasonably safe condition” … . Perry v Sada Three, LLC, 2023 NY Slip Op 06456, First Dept 12-14-23

Practice Point: In a slip and fall, the “open and obvious” character of the condition has no bearing to the issue whether the defects caused plaintiff’s injury.

 

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