Terranova v. Staten Island University Hospital

57 A.D.3d 765, 870 N.Y.2d 84

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2008
• Status: Published

Opinion

A landowner is under no duty to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see Fitzgerald v Sears, Roebuck & Co., 17 AD3d 522 [2005]; Orlando v Audax Constr. Corp., 14 AD3d 500 [2005]; Capozzi v Huhne, 14 AD3d 474 [2005]; Jang Hee Lee v Sung Whun Oh, 3 AD3d 473 [2004]; Cupo v Karfunkel, 1 AD3d 48 [2003]). Here, the plaintiff allegedly was injured when she tripped on the footrest of a wheelchair in a hospital room. The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the presence of the wheelchair was open and obvious, known to the plaintiff, and not inherently dangerous (see Mastellone v City of New York, 29 AD3d 540 [2006]; Fitzgerald v Sears, Roebuck & Co., 17 AD3d at 522; Weiner v Saks Fifth Ave., 266 AD2d 390 [1999]; Lamia v Federated Dept. Stores, 263 AD2d 498 [1999]; Sewer v Fat Albert’s Warehouse, 235 AD2d 414 [1997]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Spolzino, J.R, Florio, Garni and Leventhal, JJ., concur.