Thanks Captain Obvious!!

Sometimes, the best defense to a claim is obvious --- open and obvious to be precise.?In a recent case handed down by the Supreme Court of the State of New York, Appellate Division, Second Department, the Court affirmed the trial Court’s decision to grant summary judgment in favor of the Defendant, a restaurant that had planters set up outside with ropes between the planters, where Plaintiff claimed he tripped over the ropes sustaining injury.

???????????In William Morrissette v. Kismat Indian Restaurant, ___ AD3d ___, Docket No.:?2020-02076, (2nd Dep’t. 2021) decided on July 7, 2021, the Court addressed a situation where the Plaintiff attempted to walk between two planters separating the outdoor seating area of Defendant’s restaurant from the rest of the sidewalk.?The Court noted that the “… plaintiff alleged that he did not see the rope prior to the accident.”?

???????????Defendant argued that rope was open and obvious and not inherently dangerous.?The Court held that “while a possessor of real property has a duty to maintain its premises in a reasonably safe condition (see Basso v. Miller 40 NY2d 233, 241), there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (see Sneed v. Fulton Park Four Assoc., L.P., 192 AD3d 1058; Cupo v. Karfunkel, 1 AD3d 48, 52).”

???????????Although not discussed in detail in the Morrissette opinion, in our review of the Sneed case, we noted that the Court held that a suspended chain was open and obvious, observing that the chain in question “was suspended approximately four to five inches above the ground between two posts. At the time of the accident, the sun was shining and there was no precipitation.”??In the Cupo case, not discussed in detail in Morrissette, the Court identified examples from past cases of open and obvious conditions including:?a cement parking block on floor of a firehouse;?a forklift in a marked stall in a parking lot; a concrete parking divider; and,?a sink vanity on the floor of the store aisle.

???????????A review of the docket in the trial Court shows that Defendant argued in its motion that Plaintiff tripped over a readily observable brown rope.?Defendant also pointed out the Plaintiff was exiting an outdoor seating café rather than using the designated entrance/exit and walked between the planters and caught his foot on a rope.?Defendant in its motion disputed that there were any statutory violations as claimed by Plaintiff in Plaintiff’s Bill of Particulars.?Of note, the 59-year-old Plaintiff claimed a severe injury --- a hip fracture with surgery.?

???????????A review of the trial Court’s docket indicates that Plaintiff’s counsel argued that the ropes are the same color as the surrounding sidewalk and that the lighting was dim, among other arguments.?

???????????In the end both the trial Court and the Appellate Division were swayed by the Defendant’s argument.

???????????Sometimes, the best defense to a claim hides in plain sight.?In this case, to both Courts who looked at the case, it was obvious who should prevail.

???????????I hope this article and the case discussed in it helps you when analyzing your next case or incoming claim, or if writing a brief or report in a premises liability case.?This article is not legal advice, it is just a general discussion.?If you have a specific question, please feel free to contact me.??