By Vito A. Cannavo, Esq.
New York City, New York (New York Injury News — New York Injury Lawyers Forum) — Under New York law, a landowner may be liable to a visitor injured on his or her property if a dangerous condition exists that is not open and obvious. In a case entitled Roros v. Oliva, 54 A.D.3d 398 (2d Dep’t 2008), a plaintiff was successful in reinstating a case dismissed by a lower court, which determined that the hazard at issue was “open and obvious” and readily apparent to all who came near it.
The plaintiff, who was a social guest at the defendants’ house for the first time, fell when she did not see a step down separating the foyer from the living room. The floor of the foyer and the living room, as well as the nosing of the step, consisted of the same wood material. Plaintiff claimed she did not notice the existence of the step prior to the accident. At her deposition, the plaintiff stated that, prior to the accident, no one warned her of a step down into the living room. The plaintiff further stated that, after she fell, the defendants informed her that two other people had previously fallen over this same step.
The defendants moved for summary judgment dismissing the complaint, contending that the single step was open and obvious, and not inherently dangerous. The plaintiffs opposed the motion, arguing that the identical flooring material created an optical illusion that the foyer and the living room were on the same plane. The plaintiffs also submitted photographs of the accident area and an affidavit from an engineer, who opined that the step created a hazardous condition. While the trial court granted the defendants’ motion, a higher appeals court reversed the ruling and reinstated the complaint.
Citing relevant law, the Appellate Division of the Supreme Court held that a landowner “must act as a reasonable person in maintaining his or her 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.” The Court went on to explain that “[t]he scope of a landowner’s duty to maintain property in a reasonably safe condition may also include the duty to warn of a dangerous condition. However, a landowner has no duty to warn of an open and obvious danger.” Nevertheless, a duty to warn will arise where the “hazard is latent.”
Here, the plaintiffs submitted evidence sufficient to rebut the defendants’ argument and raised a triable issue of fact as to whether the single step was an open and obvious condition. Specifically the court held, “there is an issue regarding whether, under the circumstances, a person who was unfamiliar with the premises could reasonably perceive the existence of a change in elevation between the foyer and the great room and/or whether the subject area created ‘optical confusion.’” Accordingly, the case was allowed to proceed to trial.
If you are injured on property owned by someone else, you should consult with a New York premises liability attorney as soon as possible. You may be entitled to compensation for your injuries, including payment for medical expenses, disability, loss of enjoyment of life and your pain and suffering.
By: New York premises liability attorney Vito A. Cannavo,
