Third Department Examines Open and Obvious Defense
September, 2003
In a pair of recent decisions, the Third Department has recently examined application of the open and obvious defense in premises liability cases, finding that landowner owes a duty to maintain his property in a reasonably safe condition – even where the defect in question is open and obvious.
McDonald v. City of Schenectady
In McDonald v. City of Schenectady, 761 N.Y.S.2d 752, plaintiff was injured when she tripped on a sidewalk crack. She asserted that defendants negligently failed to inspect, repair and maintain the sidewalk and, further, that the sidewalk had been in need of repair since the defendant City of Schenectady removed a tree stump from the site approximately six years before plaintiff fell. Because plaintiff admitted that she was aware of the sidewalk’s condition before her fall, having encountered it on a daily basis for over a month prior, Supreme Court granted summary judgment to defendants. Supreme Court found that that the condition was open and obvious and so defendants had no duty to correct it or warn of it.
The Third Department reversed. The appellate court first found that the open and obvious nature of the sidewalk crack was undisputed, and so “negated any duty that defendants, as landowners, owed plaintiff to warn” of it. However, the court found that the open and obvious nature of the defect did not per se negate defendants’ “broader duty” to maintain their property in a reasonably safe condition. “While cognizant that this Court has previously held that obviousness negates a landowner’s duty to maintain his or her property under factually similar circumstances, and that language broadly stating that principle has made its way into a number of our other cases,” the court wrote, “we articulate a different rule today.”
The Third Department identified two-bases for its “different rule.” First, it looked Tagle v. Jakob, 97 N.Y.2d 165, 737 N.Y.S.2d 331 (2001), the Court of Appeals’ most recent decision in this area. In Tagle, the Court of Appeals addressed the landowner’s duty to maintain and duty to warn as “distinct issues and, significantly, applying the open and obvious danger defense only to the duty to warn.” The Tagle court found that “the open and obvious nature of the defect defeated any claim based on the duty to warn.” In a separate analysis, however, the Tagle court also found that “the landowner’s duty to maintain the property was dispensed with on another ground, her status as a servient landowner.” From this, the Third Department concluded that “[t]he structure of the Court’s analysis suggests that the obviousness of the allegedly dangerous condition did not negate the duty to maintain as a matter of law.”
The Third Department then looked to public policy. “The societal benefit to imposing a duty to maintain one’s premises in a reasonably safe condition remains even where the dangerous conditions is obvious,” the court said. It continued: “A contrary rule of law would permit a landowner to persistently ignore an extremely hazardous condition – regardless of how foreseeable it might be that injuries will result from the condition – simply by virtue of the fact that it is obvious and apparent to onlookers. In our view, the extent that a danger is obvious is a factor which, like the status of the plaintiff on the property, will impact the foreseeability of an accident and the comparative negligence of the injured party, but will not, as a matter of law, relieve a landowner of all duty to maintain his or her premises.”
Soich v. Farone
Just three weeks after McDonald, the Third Department split three to two in applying its holding in a case involving a trespasser. In Soich v. Farone, 2003 WL 21756099, plaintiff was injured when he slipped and fell on a crack in a vacant lot owned by defendants. Although the crack was open and obvious, plaintiff was trespassing on defendants’ property at the time of his accident. Supreme Court accordingly entered summary judgment for defendants.
The majority applied McDonald, and reversed. As in McDonald, the majority found that the open and obvious nature of the crack did not negate defendants’ duty to maintain their property in a reasonably safe condition. The majority rejected defendants’ argument that they owed no duty to plaintiff by virtue of plaintiff’s status as a trespasser. “Plaintiff’s status as a trespasser must be considered in determining whether it would be reasonable to require defendants to take steps to remedy the defect and may ultimately result in a finding that defendants did not breach their duty of reasonable care under the circumstances,” the majority wrote. “However, the issue of whether the claimed defect was unreasonably unsafe cannot be resolved here on summary judgment.”
The dissent opined that “to recognize a duty of insuring safe passage for plaintiff, who was a trespasser on the property, extends the law” too far. The dissent noted that the Third Department, in Palmer v. Prescott, 208 A.D.2d 1065 (1994), had previously held that landowners do not owe trespassers a duty of protection from the perils of snow and ice and asserted that the same reasoning should apply here: “The logic of this Court’s holding in Palmer, that an owner of vacant property has no duty to maintain the premises for the benefit of unauthorized trespassers, applies without distinction to broken concrete just as well as it does to snow and ice. Holding otherwise creates dangerous precedent and is an unwarranted expansion of the law of premises liability.”
Learning Point:
McDonald and Soich demonstrate that, at least in the Third Department, premises liability cases involving injury caused by an open and obvious defect may turn more on plaintiff’s status (invitee, trespasser, etc.) while on the land and less on the open and obvious nature of the defect. If the Soich dissent proves persuasive to other appellate panels, application of the McDonald rule may vary widely with the facts of each case . We will continue to monitor developments in this area and update our readers accordingly. •
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