WHETHER A CONDITION IS “OPEN AND OBVIOUS” IS USUALLY A JURY QUESTION; IN THIS SLIP AND FALL CASE, PLAINTIFF TRIPPED AND FELL OVER THE FORK PART OF A FORKLIFT PARKED IN AN AISLE OF A HOME DEPOT STORE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that whether a condition is “open and obvious” is usually a question of fact for the jury:

“A landowner has a duty to maintain its premises in a reasonably safe condition” … . “However, a landowner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … .

Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the forklift was open and obvious and not inherently dangerous … . “Some hazards, although discernable, may be hazardous because of their nature and location” … . In particular, the plaintiff’s deposition testimony raised a triable issue of fact as to whether the forklift’s location, in relation to the five quarter decking the plaintiff was loading into his cart when the accident occurred, constituted an inherently dangerous condition … . The plaintiff testified, inter alia, that he could not put his cart right next to the location in the aisle where he was retrieving the five quarter decking because the forklift was in the way. Simon v Plainview Ave. Assoc., 2026 NY Slip Op 05205, Second Dept 9-2-26

Practice Point: Here plaintiff tripped over the fork part of a forklift parked in an aisle of a Home Depot store. The complaint should not have been dismissed. Whether the condition was open and obvious and not inherently dangerous was a question of fact.