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The “Open and Obvious” Defense to Premises Liability in New York

Should a party be able to recover compensation for injuries suffered due to a hazard that was readily apparent? This question often arises on Long Island during the winter months, when individuals visiting places of business or private residences slip on a patch of ice. But it can also come up when accidents happen on staircases without railings or in hallways littered with debris from an apartment remodel. The landlord claims that the unsafe condition was so open and obvious that any reasonably intelligent person with use of his senses would have recognized the danger. Under the “open and obvious” defense, the landlord claims he had no duty to warn, and the plaintiff brought trouble upon himself when he continued across the ice, up the stairs or down the hallway.

Disagreement among the courts on how to treat open and obvious hazards

The open and obvious defense is viable in New York, although there is not complete agreement among the courts in the appellate division, where some departments hold that a landlord has no duty to warn or protect against a condition that is open and obvious. Others consider these as separate duties and hold that a landlord does not have a duty to warn, but still has a duty to keep the premises reasonably safe. In such cases, a landlord may not be liable for a hazard as long as a visitor has a reasonable alternative to encountering the hazard. However, even if an alternate route is not open to a visitor, the court could consider the comparative negligence of the visitor who disregards the obvious danger and proceeds across the hazard. Some courts also weigh whether circumstances made it necessary for the visitor to encounter the hazard despite the obvious peril and whether such a course of action by a visitor was foreseeable.

The plaintiff seeking compensation for a slip and fall accident involving an obvious hazard must be prepared to demonstrate an absence of reasonable alternatives to the path taken.  Making that case invariably requires the assistance of a skilled accident attorney. A knowledgeable and caring lawyer at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia is ready to evaluate your case for free.

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