Defendant Failed to Demonstrate the Cause of Plaintiff’s Fall (a Ramp Outside a Building) Was Open and Obvious as a Matter of Law—Summary Judgment Should Not Have Been Granted

The Second Department determined the defendant was not entitled to summary judgment in a slip and fall case. The defendant argued the cause of the fall, a ramp outside the defendant’s building, was open and obvious.  The plaintiff alleged the area was not properly lit and the ramp could not be seen:

At about 5:30 p.m. on December 4, 2008, the injured plaintiff allegedly sustained personal injuries when he tripped and fell over a ramp outside a building owned by the defendant. The injured plaintiff testified at his deposition that, at the time of the accident, it was completely dark. He further testified that, as he was walking through the defendant’s parking lot, he did not see the ramp because its color blended into that of the surrounding pavement and because the parking lot was inadequately lit.

A landowner has a duty to maintain his or her property in a reasonably safe manner to prevent foreseeable injuries … . A landlord, however, has no duty to protect or warn against an open and obvious condition that is not inherently dangerous as a matter of law … . To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it … .

Here, the defendant failed to establish, prima facie, that the allegedly dangerous condition was open and obvious … . The issue of whether a dangerous condition is open and obvious is fact-specific …, and cannot be divorced from the surrounding circumstances … . Baron v 305-323- E Shore Rd Corp, 2014 NY Slip Op 06932, 2nd Dept 10-15-14