Tuesday, July 5, 2011

"Open and Obvious" Defense Fails

            In Demuth v. Best Buy Stores, L.P., 2011 NY Slip Op 5014 (2d Dept.), the plaintiff allegedly was injured when she tripped and fell over a cluster of concrete protruding from the ground in an area adjacent to a Best Buy store.  Best Buy sought to dismiss her case, alleging that the cause of the plaintiff’s accident was “open and obvious” and “not inherently dangerous.”

The Court disagreed with Best Buy and held for the plaintiff in this case, stating the following: “while a landowner has a duty to maintain its premises in a reasonably safe manner, it does not have a duty to protect against an open and obvious condition which, as a matter of law, is not inherently dangerous.  [In this case, however, due to insufficient evidence submitted by Best Buy], Best Buy failed to demonstrate that the cluster of concrete on which the plaintiff tripped was a naturally occurring topographic condition or some other condition that a landowner could not reasonably be expected to remedy, and thus failed to show that it was not inherently dangerous.”

Salvatore R. Marino, Esq.

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