By Gerald D. D’Amelia, Jr., Esq.
The fact that a condition is open and obvious may be a viable defense to a premises liability claim. However, case law has distinguished between the duty to maintain and the duty to warn. Furthermore, there are variations on the duty to maintain within the several appellate courts in the state. Therefore, a defendant is well served by considering the application of this seemingly well-settled rule and the effect of the Department in which the case is venued.
Case law is replete with the statement that liability under common law negligence will not attach when the dangerous condition of which the plaintiff complains was open and obvious. See Sandler v. Patel, 288 AD2d 459, 733 NYS2d 131 (2nd Dept. 2001); Costello v. Grand Central Plaza Inc., 268 AD2d 722, 701 NYS2d 485 (3rd Dept. 2000); Russell v. Archer Building Centers Inc., 219 AD2d 772, 631 NYS2d 102 (3rd Dept. 1995). A condition is open and obvious when it is readily observable by the reasonable use of one’s senses. See Sandler v. Patel, 288 AD2d 459, 733 NYS2d 131 (2nd Dept. 2001). However, this doctrine is inconsistently applied and has been recognized by the Second Circuit Court of Appeals as being “unsettled among appellate courts in New York.” Michalski v. Home Depot, 225 F3d.113 (2nd Cir. 2002).
The Second Department appears most favorable to a landowner to the extent that its holdings indicate that the duty to maintain as well as warn is negated by a condition that is open and obvious. For example, in Thomas v. Price-Mart, Inc., 267 AD2d 374, 699 NYS2d 729 (2nd Dept. 1999), the court held that there was no duty to warn of a condition that was readily observable by the reasonable use of one’s senses. See also Gonzalez v. Fastflex, Inc., 270 AD2d 229, 704 NYS2d 515 (2nd Dept. 2000). The Court has stated that there is no duty to protect or warn against a condition that is open and obvious. Czorniewy v. Mosera, 298 AD2d 352, 751 NYS2d 375 (2nd Dept. 2002). It has also declined to impose liability in a case where an icy condition was readily observable by the reasonable use of the plaintiff’s senses. See Patel v. Corporate Park Development Associates, 275 AD2d 313, 712 NYS2d 402 (2nd Dept. 2000).
The Appellate Division, Fourth Department has distinguished between the duty to warn and the duty to keep a premises reasonably safe relative to a condition that is open and obvious. See Pelow v. Tri-Main Development, ___ AD2d ___, 757 NYS2d 653 (4th Dept. 2003). In that case the fact that a hazard was readily observable did not negate the defendant’s duty to keep the premises in a reasonably safe condition. Rather, it was considered relevant to the issue of the plaintiff’s comparative negligence. However, no duty was imposed on the landowner to warn of a condition that is open and obvious. See also Mazurek v. Home Depot, ___ AD2d ___, 757 NYS2d 425 (4th Dept. 2003).
The First Department has similarly held that a landowner has no duty to warn of an open and obvious condition. See Piluso v. Bell Atlantic Corporation, 2003WL 21011177 (1st Dept. 2003). However, the law is unsettled as to whether an open and obvious condition negates a duty to eliminate or protect against same. For example in Pinero v. Rite Aid of New York, Inc., 294 AD2d 251, 743 NYS2d 21 (1st Dept. 2002), the Court stated that there is no duty to eliminate, protect against, or warn of a dangerous, defective or hazardous condition that is in plain view, open, obvious, and readily observable by those employing the reasonable use of their senses. However, in Tuttle v. Anne LeConey, Inc., 258 AD2d 334, 685 NYS2d 204 (1st Dept. 1999), the Court held that an open and obvious danger did not negate an owners duty, rather it merely raised issues of the plaintiff’s comparative negligence.
The Third Department’s holdings are similarly split. For example, the Third Department has stated that the duty to maintain property in a reasonably safe condition extends only to those conditions that are not readily observable. Costello v. Grand Central Plaza, 268 AD2d 722, 701 NYS2d 485 (3rd Dept. 2000); Russell v. Archer Building Centers Inc., 219 NYS2d 772, 631 NYS2d 102 (3rd Dept. 1995). The Court has also stated that there is no duty to warn of a condition that is open and obvious. Leckanby v. Cohoes Community Center, ___ AD2d ___, 749 NYS2d 336 (3rd Dept. 2002). However, the Court has tempered these general rules as noted by the Second Circuit Court of Appeals in Michalski v. Home Depot, 225 F.3d 113 (2nd Cir. 2000).
In the cases of Spannagel v. New York, ___AD2d ___, 748 NYS2d 421 (3rd Dept. 2002) Comeau v. Wray, 241 AD2d 602, 659 NYS2d 347 (3rd Dept. 1997) the Court, though acknowledging the general rules negating a duty to protect and warn, has nonetheless found a duty exists when landowners have or should have reason to expect that a person will find it necessary to encounter an obvious danger. Under such circumstances the Court has held that a landowner owes a duty of reasonable care to either warn such persons of the danger, or to take other reasonable steps to protect them from it.
In sum, although an open and obvious condition will always be relevant to the issue of the plaintiff’s comparative negligence, it is unsettled whether a duty to keep a premises in a reasonable safe condition is negated when the defective or dangerous condition is open and obvious. Furthermore, although the general rule throughout the state is that a duty to warn is negated by a condition that is open and obvious, the Third Department has tempered this rule as set forth above. Accordingly, the application of the rule will be dependant on the theories of liability asserted, the matter’s venue and the nature of the defective condition. Nonetheless, it is fair to say that this seemingly well-settled rule, is not.