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“Open and Obvious” Conditions Result in Summary Judgment For Defendants In Two Recent New York Cases

Mathis v. D.D. Dylan, LLC and Benjamin v. Trade Fair Supermarket, Inc.

In two recent decisions issued on the same day, the Appellate Division, Second Department granted summary judgment to defendants on the issue of whether a condition was open and obvious as a matter of law. Both decisions involved plaintiffs tripping over boxes. Notably, the Appellate Divisions of New York often hold that whether a condition is open and obvious is a question of fact for the jury.

In Mathis v. D.D. Dylan, LLC, 119 A.D.3d 908 (2d Dept. 2014), plaintiff allegedly tripped and fell over a cardboard box containing a shovel in the hallway/foyer of premises owned by the defendant.

The lower court granted summary judgment to defendants finding that the box containing the shovel at issue was an open and obvious condition, and not inherently dangerous as a matter of law.

In affirming the lower court’s decision, the Appellate Division found that the deposition testimony of the plaintiff, who stated that she visited the premises almost daily and that the box containing the shovel was in the same place prior to the accident for nine months helped support defendants’ position. The fact that plaintiff had passed the box with the shovel more than once on the day of the accident without incident, and the box and shovel remained in the same place helped support the Court’s reasoning for affirming summary judgment.

In Benjamin v. Trade Fair Supermarket, Inc., 119 A.D.3d 880 (2d Dept. 2014), plaintiff allegedly was injured when she tripped and fell over boxes left in the meat aisle of the defendants’ supermarket.

The lower court denied defendants’ motion for summary judgment. The Appellate Division reversed and held that defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject boxes in the supermarket aisle were open and obvious (i.e., readily observable by the reasonable use of one's senses), and not inherently dangerous.

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