Katz v. Westchester County Healthcare Corp.

82 A.D.3d 712, 917 N.Y.2d 896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2011
• Status: Published

Opinion

A property owner has a duty to maintain his or her property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233, 241 [1976]). However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous (see Tyz v First St. Holding Co., Inc., 78 AD3d 818 [2010]; Weiss v Half Hollow Hills Cent. School Dist., 70 AD3d 932 [2010]; Bretts v Lincoln Plaza Assoc., Inc., 67 AD3d 943 [2009]; Neville v 187 E. Main St., LLC, 33 AD3d 682 [2006]; Cupo v Karfunkel, 1 AD3d 48 [2003]). Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted (see Stopped v Yacenda, 78 AD3d 815, 816 [2010]; Villano v Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061 [2010]; Shah v Mercy Med. Ctr., 71 AD3d 1120 [2010]; Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008]). Here, the defendants failed to establish, prima facie, that the alleged condition that caused the plaintiff to trip and fall was open and obvious and not inherently dangerous (see Carson v Baldwin Union Free School Dist., 77 AD3d 878 [2010]; see generally Cupo v Karfunkel, 1 AD3d 48 [2003]). Since the defendants did not meet their initial burden as the movants, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Accordingly, the Supreme Court correctly denied the defendants’ motion for summary judgment dismissing the complaint. Covello, J.E, Lott, Roman and Miller, JJ., concur.