Opposing Summary Judgment Motions Brought under the “Open and Obvious Danger” Defense by Michael G. Bersani INTRODUCTION Generally, the “open and obvious danger” doctrine holds that a landowner has no duty to warn of open and obvious dangers. See, Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331 (2001). This is because the obviousness of the danger itself is deemed to constitute an adequate warning. Pinero v. Rite Aid of New York, Inc., 294 A.D.2d 251, 252, 743 N.Y.S.2d 21, 23 (1st Dept 2002); DeMarrais v. Swift, 283 A.D.2d 540, 724 N.Y.S.2d 766 (2nd Dept 2001); Rolfe v. Galt, 102 A.D.2d 983, 984, 477 N.Y.S.2d 790, 791 (3rd Dept 1984); Olsen v. State of New York, 30 A.D.2d 759, 759-760, 291 N.Y.S.2d 833, (4th Dept 1968), affd, 25 N.Y.2d 665, 306 N.Y.S.2d 474, 254 N.E.2d 774. Although there is consensus regarding the general rule, there is a split in Appellate Division authority regarding whether a landowner is generally entitled to summary judgment upon a showing that the danger was open and obvious. Further, there appears to be a recent trend in New York towards application of the Restatement rule (Second Restatement of Torts § 343A [1] [1965]) regarding open and obvious dangers. Plaintiffs’ attorneys have a better chance of surviving summary judgment if they understand (1) the Restatement rule; (2) the general principles of landowner liability set forth in the landmark case of Basso v. Miller, supra and (3) the split in the appellate divisions regarding the open and obvious danger doctrine. THE RESTATEMENT RULE The Second Restatement of Torts reads, in relevant part: (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Comment (f) of this Restatement further explains: There are . cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm. 71 South St., Auburn, NY 13021 | 245 Commerce Blvd., Liverpool, NY 13088 | 866.698.8169 | © 2008, Michaels & Smolak, P.C., Trial and Personal Injury Lawyers 1 Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§ 466 and 496 D.) It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances. Restatement [Second] of Torts § 343A (1) (1965) (emphasis added). Thus, under the Restatement, where the landowner should have anticipated the harm toward plaintiff [i.e., the harm was foreseeable] despite the open and obvious nature of the danger, the landowner’s duty toward plaintiff does not vanish. Rather, the openness and obviousness of the danger goes to the issue of comparative negligence. BASSO V. MILLER In the 1976 Court of Appeals seminal case of Basso v. Miller, the concurrence opinion cited to this Restatement rule with approval, yet case law applying the Restatement in New York is scarce. (40 NY2d 233, 244-245, 386 N.Y.S.2d 564). The Restatement rule, however, dovetails perfectly with the general principles of landowner liability announced in Basso, where the key factor to consider in determining landowner liability is foreseeability in view of all the circumstances. In Basso, the Court of Appeals abandoned the rigid categories of landowner liability based on a plaintiff’s status vis-à-vis the landowner (licensee, trespasser or invitee) in favor of a more flexible rule “of reasonable care under the circumstances.” (Basso v. Miller, supra, at 241). In so doing, the Court “correlat[ed] the duty of care owed plaintiff with the risk of harm reasonably to be perceived, regardless of status” and announced “adherence to the single standard of reasonable care under the circumstances where by foreseeability shall be a measure of liability.” Id (emphasis added). The Court held that “[a] landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Id. This duty to act “reasonably under the circumstances” clearly was to apply both to the duty to warn of danger and to otherwise act to eliminate foreseeable danger to foreseeable plaintiffs. See, id. Since Basso was decided, the New York appellate divisions have split, as described below, on whether a showing that the danger was “open and obvious”, without more, generally requires dismissal of plaintiff’s case. Those Courts that routinely dismiss such cases on summary judgment appear to ignore the flexible approach in determining a landowner’s duty announced in Basso. In other words, they fail to conduct an analysis of whether, “in view of all the circumstances of the case”, the landowner should have foreseen harm to plaintiff. 71 South St., Auburn, NY 13021 | 245 Commerce Blvd., Liverpool, NY 13088 | 866.698.8169 | © 2008, Michaels & Smolak, P.C., Trial and Personal Injury Lawyers 2 APPELLATE DIVISION SPLIT Here is how the Departments are split: FIRST DEPARTMENT: The First Department rule generally is that an “open and obvious danger does not negate [defendant’s] duty to plaintiff [to keep the premises reasonably safe], but simply raises issues of fact as to her comparative fault”. Tuttle v. Anne LeConey, Inc., 258 A.D.2d 334, 685 N.Y.S.2d 204 (1st Dept 1999); but see, Pinero v. Rite Aid of New York, Inc., 294 A.D.2d 251, 743 N.Y.S.2d 21 (1st Dept 2002) (summary judgment granted to defendant in part because “there is no duty to protect or warn against conditions that are in plain view, open, obvious and readily observable”). In Orellana v. Merola Associates, Inc., 287 A.D.2d 412, 731 N.Y.S.2d 726 (1st Dept 2001), for example, plaintiff was injured when he tripped and fell on warped plywood covering newly cemented steps. In dismissing defendant’s motion for summary judgment, the court held that “even if the dangerous condition were readily observable, such fact would go to the issue of comparative negligence and would not negate defendants’ duty to keep the premises reasonably safe.” In some cases, however, where plaintiff clearly seems to have assumed a known risk, the First Department is willing to dismiss plaintiffs’ cases as a matter of law. For example in Garcia v. New York City Housing Authority, 234 A.D.2d 102, 650 N.Y.S.2d 715 (1st Dept 1996) plaintiff entered a fenced-off yard under construction and climbed a mound of snow and ice, left by construction workers, to retrieve a cat, and then slipped and fell from the mound. The court granted summary judgment to defendant, noting that the mound of ice and snow “was open and obvious and . could have been avoided by the exercise of reasonable care”. FOURTH DEPARTMENT: Of all the New York jurisdictions, the Fourth Department is the most plaintiff-friendly with regard to the open and obvious danger doctrine. In this jurisdiction, although a landowner has “no duty to warn plaintiff of the open and obvious condition”, the landowner nevertheless has a continuing duty to “keep [the] premises reasonably safe”. Holl v. Holl, 270 A.D.2d 864, 705 N.Y.S.2d 783 (4th Dept 2000). The fact that the danger is open and obvious “goes to the issue of comparative negligence and does not negate the duty of defendant to keep [the] premises reasonably safe” (Holl v. Holl, supra; see, Patterson v. Troyer Potato Products, Inc., 273 A.D.2d 865, 709 N.Y.S.2d 731 (4th Dept 2000). For example, in Patterson v. Troyer Potato Products, Inc., supra, plaintiff sustained injuries when her lower right leg struck a shelf protruding into the aisle of a Convenient Food Mart store. Defendant moved for summary judgment based on the open and obvious danger doctrine. The Court denied summary judgment, holding that “even assuming, arguendo, that the protruding shelf was readily observable, we conclude that such fact would go to the issue of comparative negligence and [would] not negate the duty of defendants to keep their premises reasonably safe.” The Fourth Department has fairly consistently applied this rule in a variety of settings, including in snow and ice cases.