You are here: / / ONE INCH DEEP DEPRESSION IN THE ROADWAY WHICH WAS SURROUNDED BY ORANGE...
,

ONE INCH DEEP DEPRESSION IN THE ROADWAY WHICH WAS SURROUNDED BY ORANGE MARKINGS WAS NOT DEMONSTRATED TO BE TRIVIAL OR BOTH ‘OPEN AND OBVIOUS’ AND ‘NOT INHERENTLY DANGEROUS’ AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff was jogging when she tripped over a raised edge of a depression in the roadway. The defect was surrounded by orange markings:

The evidence demonstrated that [defendant] was in the process of restoring the excavated area in the location of the plaintiff’s accident and that the alleged defective condition measured approximately four-feet wide, eight-feet long, and at least one-inch deep. …

… 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'”  … . Furthermore, “proof that a dangerous condition is open and obvious does not preclude a finding of liability . . . but is relevant to the issue of the plaintiff’s comparative negligence” … . “Thus, to obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous” … . Here, the defendants failed to establish, prima facie, that the alleged defect was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident … . Finally … , the doctrine of primary assumption of risk is inapplicable to this action … . Karpel v National Grid Generation, LLC, 2019 NY Slip Op 05651, Second Dept 7-17-19

 

You might also like
A POLICE CAR RESPONDING AN EMERGENCY CALL SWERVED INTO A TURN LANE TO PASS A CAR AND STRUCK A SKATEBOARDER; THERE WERE QUESTIONS OF FACT WHETHER THE OFFICER ACTED WITH “RECKLESS DISREGARD FOR THE SAFETY OF OTHERS” (SECOND DEPT).
CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT).
MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PROTECTIVE ORDER VACATED UPON EXPEDITED REVIEW (SECOND DEPT).
Failure to Timely Submit a Proposed Judgment of Divorce Did Not Constitute Abandonment of the Divorce Action/Decedent’s Death Before the Judgment of Divorce Was Entered Did Not Abate the Divorce Action/The Stipulation of Settlement (Re: the Divorce), In Which the Parties Agreed They Were No Longer the Beneficiaries of Each Other’s Wills, Was Enforceable
INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT).
THE PRIOR APPELLATE DECISION DIRECTING THE COLLECTION OF MORE EVIDENCE IS THE LAW OF THE CASE; THE DIRECTION WAS NOT COMPLIED WITH BY SUPREME COURT UPON REMITTAL (SECOND DEPT).
PLAINTIFF DID NOT SUFFER A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW IN THE UNDERLYING PEDESTRIAN-VEHICLE ACCIDENT CASE; THEREFORE PLAINTIFF COULD NOT HAVE SUCCEEDED ON THE MERITS OF THAT ACTION; DEFENDANT ATTORNEY WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE INSTANT LEGAL MALPRACTICE ACTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED, NO EXCUSE... THE PURPORTED REFORMATION OF THE INSURANCE CONTRACT TO REDUCE COVERAGE AFTER...