Questions of Fact Raised About Whether a Single Riser Was a Dangerous Condition, Despite the Obviousness of the Condition, the Fact that Plaintiff Had Negotiated the Riser Many Times Before, and the Absence of Any Code Violation

The Third Department reversed Supreme Court finding that there were questions of fact about whether a riser constituted a dangerous condition, despite the absence of a code violation, the submission of an affidavit from an expert, the fact that the plaintiff had negotiated the riser many times before, and the obvious nature of the condition:

To prevail on its motion for summary judgment, defendant was required to show that it maintained the premises in a reasonably safe condition and that it did not create or have notice of any allegedly dangerous condition … . While the existence of a dangerous or defective condition is generally a question for the factfinder …, “summary judgment is appropriate where a plaintiff fails to demonstrate the existence of any dangerous condition” … .

Here, defendant failed to establish as a matter of law that it maintained the premises in a reasonably safe condition … . In support of its argument that the riser did not constitute a dangerous condition, defendant presented an affidavit of Ronald Bova, a professional engineer who inspected the premises. Bova observed that the single-step riser was immediately apparent, as it was located in a doorway and the flooring on either side of the riser was of a contrasting color and material. Although Bova further opined that the riser did not violate the 2002 or 1964 state building codes because the building was constructed prior to their enactment, whether the building code applies to the riser is not dispositive of plaintiff’s claim, which is premised on common-law negligence principles … . Based on his inspection and measurements, Bova asserted that neither the height of the step nor the lack of a handrail made the riser dangerous; however, he failed to definitively state the height of the riser and establish that it comported with generally accepted standards at the time the building was constructed or thereafter … .

Additionally, plaintiff testified that it was difficult for her and her coworkers to traverse the step because it was “very high.” While defendant places great emphasis on plaintiff’s admission that she stepped over the riser many times, as it was the only way to access the women’s restroom, and that she was aware of the drop at the time that she fell, “[t]he germane issue in this case is not a failure to warn, but whether these premises were reasonably safe” … . The fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition … , and plaintiff’s familiarity with the allegedly defective condition may be considered with respect to her comparative negligence … . Viewing the evidence in the light most favorable to plaintiff, as the nonmoving party, we find that defendant failed to demonstrate as a matter of law that the height of the riser was not a dangerous or defective condition. Barley v Robert J Wilkins Inc, 2014 NY Slip Op 08086, 3rd Dept 11-20-14