Westbrook v. Wr Activities-Cabrera Markets

• Decision Date: 09 March 2004
• Docket Number: 2364.
• Citation: 5 A.D.3d 69,773 N.Y.S.2d 38,2004 NY Slip Op 01486
• Parties: RUTH WESTBROOK, Appellant, v. WR ACTIVITIES-CABRERA MARKETS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

5 A.D.3d 69

773 N.Y.S.2d 38

2004 NY Slip Op 01486

RUTH WESTBROOK, Appellant, v. WR ACTIVITIES-CABRERA MARKETS et al., Respondents.

2364.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 9, 2004.

DiJoseph & Portegello, P.C. and Law Office of Avi D. Caspi, PLLC (Arnold E. DiJoseph III, of counsel), for appellant.

Downing & Peck, P.C. (Paul K. Ryan of counsel), for respondents.

OPINION OF THE COURT

SAXE, J.

This appeal gives us the opportunity to investigate and reexamine the proposition that a property owner will not be liable in tort under a theory of common-law negligence when a complained-of dangerous condition was open and obvious.

Plaintiff Ruth Westbrook states that on May 29, 1998, as a result of defendant's negligence, she tripped and fell over a cardboard box that had been left in an aisle at a Met Foods supermarket on White Plains Road in the Bronx. Her testimony at deposition described how she was at the checkout counter when the cashier informed her that Crisco oil was on sale. Plaintiff left her purchases at the checkout counter, and, carrying only her pocketbook, returned to the aisle where the oil was located. She walked about 8 to 10 steps, then turned left into the subject aisle. As she turned into the aisle, plaintiff fell forward across a box which was just off the corner, near the middle of the aisle, and landed on her knees and elbow and her wrist went back. The box had not been visible as plaintiff approached the aisle, and she did not see the box before she fell. The dimensions of the box were 2½ feet long by 1½ feet wide by 10 to 12 inches high. The box was unopened.

Plaintiff brought suit for negligence; defendants moved for summary judgment, arguing that the box over which plaintiff fell did not constitute a dangerous condition as a matter of law and did not give rise to a duty to warn as it was open, obvious and readily observable. The motion court granted defendants' motion, holding that the box left in the aisle of defendant's store was not inherently dangerous, and that it was readily observable by the use of plaintiff's senses as a matter of law.

We reverse, observing that it was error to conclude as a matter of law that a box a customer happened upon as she rounded a corner into an aisle was "open and obvious." Additionally, we hold that even if a hazard qualifies as "open and obvious" as a matter of law, that characteristic merely eliminates the property owner's duty to warn of the hazard, but does not eliminate the broader duty to maintain the premises in a reasonably safe condition.

Discussion

To be entitled to summary judgment, defendant, as a property owner, was required to establish that it maintained its supermarket in a reasonably safe manner, and that it did not create a dangerous condition which posed a foreseeable risk of injury to individuals expected to be present on the property (see Monge v Home Depot, 307 AD2d 501, 502 [2003]).

Here, defendant offered no evidence whatsoever on the question of whether it created the condition or maintained its supermarket in a reasonably safe condition. Instead, relying solely on plaintiff's deposition testimony, it argued that the alleged defect was not inherently dangerous and it had no duty to protect against or warn of the condition, in view of its "open and obvious" nature.

1. Whether the Hazard is Open and Obvious as a Matter of Law

If a hazard or dangerous condition is open and obvious, the owner of the property has no duty to warn a visitor of the danger (see Tagle v Jakob, 97 NY2d 165 [2001]). The theory underlying the "open and obvious" doctrine is this:

"Where a danger is readily apparent as a matter of common sense, `there should be no liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent as a warning would have provided.' Put differently, when a warning would have added nothing to the user's appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning." (Liriano v Hobart Corp., 92 NY2d 232, 242 [1998], quoting Prosser and Keeton, Torts § 96, at 686 [5th ed].)

The hazard or dangerous condition must be of a nature that could not reasonably be overlooked by anyone in the area whose eyes were open (see Tagle v Jakob, 97 NY2d 165 [2001]), making a posted warning of the presence of the hazard superfluous (Liriano, supra).

Therefore, a plaintiff's theory of negligence based upon the claim that the property owner violated its duty to warn of the claimed hazard may be dismissed upon a demonstration that the hazard was open and obvious. Here, however, the nature of this alleged hazard simply does not compel the conclusion as a matter of law that the claimed hazard was so obvious that it would necessarily be noticed by any careful observer, so as to make any warning superfluous.

At the outset, the question of whether a condition is open and obvious is generally a jury question, and a court should only determine that a risk was open and obvious as a matter of law when the facts compel such a conclusion (see Tagle v Jakob, 97 NY2d 165, 169 [2001]). Nor is the mere fact that a defect or hazard is capable of being discerned by a careful observer the end of the analysis. The nature or location of some hazards, while they are technically visible, make them likely to be overlooked.

Illustrating the concept that even visible hazards do not necessarily qualify as open and obvious is Thornhill v Toys "R" Us NYTEX (183 AD2d 1071 [1992]), in which summary judgment was denied where a customer tripped and fell over a raised platform in a department store. The Court explained that an issue of fact was presented as to whether the platform was open and obvious, even though the platform was discernible, and indeed, the plaintiff had initially noticed and avoided it. The Court relied on photographs revealing that the presence of the platform was not as clearly discernible from the rear as it was from the front, due to the presence of circular display racks (id. at 1073).

Here, too, a question of fact is presented as to whether, under the circumstances, the hazard was open and obvious.

2. The Duty to Maintain Premises in Safe Condition Remains

Even if we agreed that the claimed hazard here was open and obvious as a matter of law, we would still deny summary judgment, since plaintiff is not claiming a violation of the duty to warn, but a violation of the broader duty to maintain the premises in a reasonably safe condition.

Until recently, some courts have dismissed all negligence claims where the hazard was considered to be open and obvious, broadly holding that "`[l]iability under . . . common-law negligence will not attach when the dangerous condition complained of was open and obvious'" (see e.g. Sandler v Patel, 288 AD2d 459, 459 [2d Dept 2001], lv denied 99 NY2d 509 [2003], quoting Panetta v Paramount Communications, 255 AD2d 568 [1998], lv denied 93 NY2d 806 [1999]; Patrie v Gorton, 267 AD2d 582 [3d Dept 1999], lv denied 94 NY2d 761 [2000]). However, the Second Department and Third Department have specifically repudiated their prior holdings such as in Sandler v Patel and Patrie v Gorton, holding instead that "proof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence" (see Cupo v Karfunkel, 1 AD3d 48, 52 [2d Dept 2003]; see also MacDonald v City of Schenectady, 308 AD2d 125 [3d Dept 2003]). Indeed, such a broad application of the open and obvious doctrine has recently been rejected in all four Departments; as this Court observed in Cohen v Shopwell, Inc.,

"[T]he duty to maintain premises in a reasonably safe condition is analytically distinct from the duty to warn, and that liability may be premised on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn." (Cohen v Shopwell, Inc., 309 AD2d 560, 562 [2003], citing MacDonald v City of Schenectady, supra.)

These recent decisions are in accord with others coming to the conclusion that the open and obvious nature of a hazard merely negates the duty to warn of the hazard, not necessarily all duty to maintain premises in a reasonably safe condition (see e.g. Orellana v Merola Assoc., 287 AD2d 412, 413 [1st Dept 2001]; Holl v Holl, 270 AD2d 864 [4th Dept 2000]).

As the Third Department observed in MacDonald v City of Schenectady (at 128-129), where the dismissal of the plaintiff's personal injury action was reversed despite her admitted prior awareness of the cracked condition of the sidewalk on which she tripped:

"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 such 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."

Yet, despite the foregoing decisions of all four Departments of the Appellate Division in recent months, concluding that the open and obvious nature of a defect does not abruptly end the analysis of a negligence claim against a property owner regarding an open and obvious hazard that can be remedied, our concurring colleague suggests that we adopt the broad rule that was recently reconsidered and roundly rejected by the other Departments of the Appellate Divisions of this State: viz., that premises liability claims should be rejected as a matter of law when the dangerous condition is open and...