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CHAIN ACROSS DRIVEWAY WAS NOT “OPEN AND OBVIOUS” AS A MATTER OF LAW; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined a chain hanging across a driveway from two yellow posts was not “open and obvious” as a matter of law. Plaintiff allegedly tripped over the chain on a dark and rainy night. Defendant’s motion for summary judgment, therefore, should not have been granted:

While a possessor of real property has a duty to maintain that property in a reasonably safe condition … , there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous … . The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for a jury … . “Whether 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” … .

Here, contrary to the Supreme Court’s determination, the defendant failed to establish, prima facie, that the chain was open and obvious, i.e., readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident … . Lazic v Trump Vil. Section 3, Inc., 2015 NY Slip Op 09075, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (CHAIN ACROSS DRIVEWAY NOT OPEN AND OBVIOUS AS MATTER OF LAW)/OPEN AND OBVIOUS CONDITION (CHAIN ACROSS DRIVEWAY NOT OPEN AND OBVIOUS AS A MATTER OF LAW)

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