The doctrine of “open and obvious” is truly counterintuitive. Its application by New York’s courts has been anything but uniform and in fact remains wide open and far from obvious. Should the doctrine serve as an absolute defense to a plaintiff’s litigation or merely affect a plaintiff’s comparative negligence? This article addresses the current state of the open and obvious doctrine as applied in tort matters in New York with a particular focus on slip, trip and fall claims.

What Is ‘Open and Obvious’?

A condition is open and obvious where it is “readily observable by those employing the reasonable use of their senses and not inherently dangerous.” Brown v. Melville Industrial Associates, 34 A.D.3d 611 (2d Dept., 2006); see also MacDonald v. City of Schenectady, 308 A.D.2d 125 (3d Dept., 2003). The court in Ratkewitch v. Simon Property Group, Inc., 2009 Slip Op. 51205(U) (Sup. Ct., Nassau Cty., 2009), succinctly summarized: “For a hazard or dangerous condition to be open and obvious, such that the property owner has no duty to warn a visitor, the hazard or dangerous condition must be of a nature that would not reasonably be overlooked by anyone in the area whose eyes were open, making a posted warning of the premises of the hazard superfluous” (citation omitted). Or as another court put it, “The situation is…a warning in itself.” Olsen v. State of New York, 30 A.D.2d 759 (4th Dept. 1968), affd. 25 N.Y.2d 665. See also Errett v. Great Neck Park District, 40 A.D. 3d 1029 (2d Dept., 2007).

Current State of the Law

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]