Liability for tripping over someone's leg in a doctor's waiting room? Maybe!

New York's Appellate Division, Second Department, has restored the lawsuit of a woman who tripped and fell over the leg of another patient in a doctor's waiting room.

In Shermazanova v Amerihealth Medical PC, plaintiff alleged that the medical practice was negligent in the manner in which it arranged the chairs in its waiting area. The medical practice moved for summary judgment on the grounds that whatever hazard there may have been was "open and obvious," and therefore not actionable. Supreme Court, Kings County agreed, and dismissed the suit.

But the Appellate Division reversed, and restored the lawsuit. "While a possessor of real property has a duty to maintain that property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous. The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for a jury," held the Court.

"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."

"Here, contrary to the Supreme Court's determination, the defendant failed to establish... that any hazard due to the placement of chairs in a passageway leading from the reception area of the medical practice to the bathroom was open and obvious, i.e., readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident."

The defendant medical practice will now have to go to trial and try to convince a jury that the feet of other patients in a waiting room are an open and obvious hazard for which there should be no liability.

Lawrence N. Rogak