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THERE WERE QUESTIONS OF FACT WHETHER A RAISED MANHOLE COVER, EXPOSED WHEN THE ROAD SURFACE AROUND THE MANHOLE WAS MILLED IN PREPARATION FOR REPAVING, CONSTITUTED A DANGEROUS CONDITION CREATED BY THE CITY AND WHETHER THE CONDITION WAS OPEN AND OBVIOUS (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the complaint, determined there were questions of fact whether the raised manhole cover constituted a dangerous condition, and whether the condition was open and obvious. Plaintiff was a passenger in a car which struck a raised manhole cover. In preparation for repaving, the existing road surface was milled or scarified such that the manhole covers extended above the surface of the road. Although asphalt was placed around the manhole (called ramping) so that the wheels on one side of a vehicle could pass over it, here the wheels on both sides of the manhole were on the milled surface and undercarriage of the car apparently struck it, causing the windshield to crack and the air bags to deploy:

[Defendant’s witness] could not say whether that ramping made it safe [for a vehicle to traverse directly over the manhole, with the wheels completely to the side of the entire width of the manhole’s ramping. It is this condition that plaintiff alleges was dangerous and defective, and the City adduced no evidence to refute that allegation. Accordingly, whether the City’s work — the ramping of the manhole — “immediately resulted in the existence of a dangerous condition,” thus rendering the City liable to plaintiff for her injuries, is a question of fact for the jury … . …

The City’s argument that the court erred in rejecting its argument sub silentio that it is nonetheless entitled to summary judgment dismissing the complaint as against it on the ground that the condition was open and obvious is unavailing. Whether a dangerous or defective condition is open and obvious relates to the duty to warn of the hazard, not the duty to neutralize it … . Summary judgment may only be granted on an open-and-obvious defense “when the established facts compel that conclusion . . . on the basis of clear and undisputed evidence”; otherwise, the inquiry “is generally fact-specific and thus usually a jury question” … . Timmons v Praylow, 2025 NY Slip Op 02744, First Dept 5-6-25

Practice Point: The question whether a condition, here a raised manhole cover, is open and obvious applies to the duty to warn, not the duty to neutralize a hazard, and is rarely appropriate as a basis for summary judgment.

Practice Point: The written-notice requirement, which is often a condition precedent for a negligence action against a municipality stemming from a road-condition, does not apply where, as here, it is alleged the municipality created the dangerous condition (a raised manhole cover).

 

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