Opinion
92806
Decided and Entered: July 10, 2003.
Appeal from an order of the Supreme Court (Caruso, J.), entered September 12, 2002 in Schenectady County, which, inter alia, granted defendants' motions for summary judgment dismissing the complaint.
Harding Law Firm, Glenville (Charles R. Harding of counsel), for appellant.
Friedman, Hirschen, Miller, Coughlin Campito P.C., Schenectady (Lynn M. Blake of counsel), for City of Schenectady, respondent.
Boeggeman, George, Hodges Corde, Albany (M. Randolph Belkin of counsel), for Rose Nejman, respondent.
Before: Cardona, P.J., Peters, Spain, Carpinello and, Lahtinen, JJ.
OPINION AND ORDER
Plaintiff commenced this action to recover for injuries allegedly sustained when she tripped on a crack in a sidewalk located outside premises owned by defendant Rose Nejman in the City of Schenectady, Schenectady County. The complaint alleges that defendants failed to "properly inspect, repair and maintain" the damaged sidewalk. The record reveals that the sidewalk had been in need of repair since defendant City of Schenectady removed a tree stump from the site approximately six years prior to plaintiff's accident. Based on plaintiff's admissions that she was aware of the condition of the sidewalk, having encountered it on a daily basis for over a month prior to the incident, defendants moved for summary judgment dismissing the complaint on the ground that the defect was open and obvious. Following precedent from this Court stating that "[a] landowner generally has no duty to correct or warn of a condition that is readily observable (i.e., open and obvious) to a person of ordinary intelligence employing the reasonable use of his or her intelligence" (Patrie v. Gorton, 267 A.D.2d 582, 582, lv denied 94 N.Y.2d 761), Supreme Court granted the motions. Plaintiff appeals.
It is undisputed that the allegedly dangerous condition was readily observable and that plaintiff was well aware of it, indeed, even to the extent of pointing it out to a friend on a prior occasion. Under these circumstances, the open and obvious nature of the defect negated any duty that defendants, as landowners, owed plaintiff to warn of potentially dangerous conditions (see Binensztok v. Marshall Stores, 228 A.D.2d 534, 535; De Rossi v. Golub Corp., 209 A.D.2d 911, 912, lv denied 85 N.Y.2d 804; Tarricone v. State of New York, 175 A.D.2d 308, 309, lv denied 78 N.Y.2d 862; Poerio v. State of New York, 144 A.D.2d 129, 131). At issue, however, is whether the obviousness of the condition also negates the broader duty of landowners "to maintain their properties in reasonably safe condition" (Di Ponzio v. Riordan, 89 N.Y.2d 578, 582; see Comeau v. Wray, 241 A.D.2d 602, 603; Thornhill v. Toys "R" Us NYTEX, 183 A.D.2d 1071, 1072).
While cognizant that this Court has previously held that obviousness negates a landowner's duty to maintain his or her property under factually similar circumstances (see Patrie v. Gorton, supra), and that language broadly stating that principle has made its way into a number of our other cases (see e.g. Cartuccio v. KCMC Trust, 280 A.D.2d 831, 831; O'Leary v. Saugerties Cent. School Dist., 277 A.D.2d 662, 663; Vliet v. Crowley Foods, 263 A.D.2d 941, 942; Hopson v. Turf House, 252 A.D.2d 796; Gransbury v. K Mart Corp., 229 A.D.2d 891, 892), we articulate a different rule today. The most recent authority on the issue from the Court of Appeals (see Tagle v. Jakob, 97 N.Y.2d 165) and policy considerations lead us to conclude that the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner's duty to maintain his or her property in a reasonably safe condition.
Notably, the resolution of these cases was not ultimately premised on the rule that obviousness negates any duty to repair or maintain. InCartuccio v. KCMC Trust (supra), we held that the plaintiff had failed to demonstrate any dangerous condition (id. at 831, 831-832), and in Vliet v. Crowley Foods (supra), we affirmed an order denying summary judgment on open and obvious grounds (id. at 942). In other situations, the Court has employed this language when explaining that an open and obvious but nondefective condition will not give rise to a duty to warn of the condition or to prevent a plaintiff from coming into contact with it (see O'Leary v. Saugerties Cent. School Dist., 277 A.D.2d 662, 663 [no duty to prevent injuries of a plaintiff who tripped over a clearly apparent curb divider]; Hopson v. Turf House, 252 A.D.2d 796, 797 [no duty to warn or prevent a plaintiff from walking into a readily observable floor planter island]; Gransbury v. K Mart Corp., 229 A.D.2d 891, 892 [affirming dismissal of complaint where the plaintiff walked into post openly and obviously situated to prevent shopping carts from leaving the area]).
In Tagle v. Jakob (supra at 168), the Court addressed the scope of a landowner's duty:
"We begin with the rule articulated in Basso v. Miller ( 40 N.Y.2d 233, 241 [1976]). There, abolishing the distinctions among trespassers, licensees, and invitees, we held that New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition. Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally. The scope of any such duty of care varies with the foreseeability of the possible harm" (footnotes omitted).
Thus, if a court finds, as a matter of law, that a duty of care exists, the issues of whether the premises were in a reasonably safe condition, whether the plaintiff's presence on the premises was reasonably foreseeable, whether the defendant was negligent in not keeping the premises in a reasonably safe condition, whether the defendant's negligence was a substantial factor in causing the plaintiff's injury, and whether the plaintiff's conduct was also negligent, remain for trial.
From these general principles, the Court of Appeals moved into an analysis of the duty to maintain and the duty to warn, addressing these as distinct issues and, significantly, applying the open and obvious danger defense only to the duty to warn (Tagle v. Jakob, supra at 169). After finding that the open and obvious nature of the defect defeated any claim based on the duty to warn, in a separate analysis, the Court held that the landowner's duty to maintain the property was dispensed with on another ground, her status as a servient landowner (id. at 169). The structure of the Court's analysis suggests that the obviousness of the allegedly dangerous condition did not negate the duty to maintain as a matter of law (see Michalski v. Home Depot, 225 F.3d 113, 121).
The rule of law which imposes no duty to warn against obvious dangers is founded in the rationale that, "[u]nder such circumstances, the condition is a warning in itself" (Tarricone v. State of New York, 175 A.D.2d 308, 309, supra; see Thornhill v. Toys "R" Us NYTEX, 183 A.D.2d 1071, 1072-1073, supra). Stated otherwise, "`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' * * * as no benefit would be gained by requiring a warning" ( Liriano v. Hobart Corp., 92 N.Y.2d 232, 242, quoting Prosser and Keeton, Torts § 96, at 686 [5th ed]). The same rationale simply does not hold true with respect to a landowner's more general duty to maintain its property in a reasonably safe condition. "Judicial recognition of a duty of care must be based upon an assessment of its efficacy in promoting a social benefit as against its costs and burdens" (Peralta v. Henriquez, 100 N.Y.2d 139, 145 [May 13, 2003], slip op p 7). The societal benefit to imposing a duty to maintain one's premises in a reasonably safe condition remains even where the dangerous condition is obvious. Notably, this Court has repeatedly articulated the fact that a landowner's duty to maintain its premises is separate and distinct from the duty to warn of latent, hazardous conditions (see e.g. Gohar v. Albany Hous. Auth., 288 A.D.2d 657, 658; Cartuccio v. KCMC Trust, 280 A.D.2d 831,supra; Sadler v. Town of Hurley, 280 A.D.2d 805, 806; Hendrickson v. Ryan, 262 A.D.2d 930, 930; Blecher v. Holiday Health Fitness Ctr. of N.Y., 245 A.D.2d 687, 687; Comeau v. Wray, 241 A.D.2d 602, 603, supra).
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 foreseeablilty 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. Here, although the defect was open and obvious and plaintiff was aware of the condition of the premises, we cannot state that no duty of care existed (see e.g. Chambers v. Maury Povich Show, 285 A.D.2d 440, 440 [2nd Dept, 2001];Tuttle v. Anne Le Coney, Inc., 258 A.D.2d 334, 335 [1st Dept, 1999];Morgan v. Genrich, 239 A.D.2d 919, 920 [4th Dept, 1997]; see also Peralta v. Henriquez, supra at slip op pp 5-6; Basso v. Miller, 40 N.Y.2d 233, 241; Smith v. Zink, 274 A.D.2d 885, 886; but see Czorniewy v. Mosera, 298 A.D.2d 352 ).
Cardona, P.J., Peters, Carpinello and Lahtinen, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, and motions denied.