By Gerald D. D’Amelia, Jr., Esq.
A previous Defense Update discussed the application of the “open and obvious” defense. In doing so, the article distinguished the application of the theory as a complete defense versus the application of the theory as evidence of comparative negligence and the manner in which the defense is applied by each Department. Significantly, the article addressed the manner in which the defense was inconsistently applied in the Third Department.
Since the publication of that article however, the Appellate Division, Third Department has deviated from its previous holdings and adopted the rule held by other departments, i.e. that an open and obvious condition will not bar a plaintiff from recovery against a premises owner. Rather, an open and obvious condition will be relevant merely to the plaintiff’s comparative negligence.
In MacDonald v. City of Schenectady, 308 AD2d 125, 761 NYS2d 752 (3rd Dept. 2003), decided July 10, 2003, the Court addressed the propriety of the dismissal of the plaintiff’s complaint. In that case the plaintiff tripped on a crack in the sidewalk. The record revealed that the sidewalk had been in need of repair for approximately six years prior to the incident. However, the plaintiff admitted that she was aware of the condition and encountered it on a daily basis for over a month prior to the incident. The Supreme Court granted the defendant’s motion to dismiss following precedent set by the Appellate Division, Third Department holding that a landowner has no duty to correct or warn of a condition that is readily observable (open and obvious) to a person employing the reasonable use of his or her senses.
In that it was undisputed that the condition was readily observable and that the plaintiff was aware of same, the Appellate Division stated that there was no duty to warn of the condition. However, at issue was whether the obviousness of the condition negated the duty of a landowner to maintain its property in a reasonably safe condition.
The Appellate Division acknowledged that it had previously held that the open and obvious nature of a condition negated a landowner’s duty to maintain his or her property. In addition, the Court noted that this principle had made its way into several cases decided by the Appellate Division, Third Department. Nonetheless, the Court indicated that it was now articulating a different rule.
In doing so, the Appellate Division stated that the Court of Appeal’s Decision of Tagle v. Jakob, 97 NY2d 165, 737 NYS2d 331(2001), as well as policy considerations led it to conclude that the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner’s duty to maintain his or her property in a reasonably safe condition. In reaching this conclusion, the Court stated that a contrary rule would allow a landowner to ignore a hazardous condition regardless of how foreseeable it might be that injuries would result from the condition simply because the condition is obvious and apparent to onlookers. Accordingly, pursuant to this holding, an open and obvious condition will only be relevant to the issue of the plaintiff’s comparative negligence.
The holdings of Mongi v. Home Depot, Inc., 761 NYS2d 886 (3rd Dept. 2003), Soich v. Farone, 307 AD2d 658, 763 NYS2d 168 (3rd Dept. 2003), and Tulovich v. Chase Manhattan Bank, N.A., 2002 WL 32251862 (2nd Dept. 2003) decided since July 10, 2003 are consistent with the principle set forth above and cite to MacDonald for the proposition that a landowner’s duty to maintain is not negated by an open and obvious condition. It is anticipated that this rule will now be adopted and consistently applied throughout the state.