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A property owner may still be liable in a tort claim even if a dangerous condition is open and obvious, an appeals court ruled yesterday in a contentious opinion. Three justices of the Appellate Division, First Department, found that if a hazard qualifies as “open and obvious,” property owners no longer have a duty to warn, but still have a broader duty to maintain their premises in a reasonably safe condition. The ruling in Westbrook v. WR Activities-Cabrera Markets, 2364, brings the First Department in line with the Second and Third departments, which last year rejected previous holdings in arriving at similar conclusions on tort liability. In Westbrook, however, two First Department justices disagreed with the majority opinion written by Justice David B. Saxe that the open and obvious doctrine negates only the duty to warn, saying such a holding “effectively eliminates the open and obvious doctrine, invites potentially limitless actions of questionable societal value, and exposes landowners to insurer-like liability.” In Westbrook, plaintiff Ruth Westbrook was at the checkout counter of a Met Foods supermarket in the Bronx when the cashier explained that Crisco oil was on sale. Ms. Westbrook, on her way to retrieve the oil, tripped over a box on the floor when she turned the corner from one aisle to another. Ms. Westbrook sued for negligence; the supermarket moved for summary judgment, arguing that the box was not a dangerous condition and was open and obvious. Bronx Supreme Court Justice Bertram Katz agreed and granted the motion. In reversing Justice Katz’s ruling, the First Department first unanimously held that the box could not be called an open and obvious hazard without a trial, since Ms. Westbrook fell over it as she rounded a corner. “Additionally,” Justice Saxe wrote, “we hold that even if a hazard qualifies as ‘open and obvious’ as a matter of law, that characteristic merely eliminates the property owner’s duty to warn of the hazard, but does not eliminate the broader duty to maintain the premises in a reasonably safe condition.” Justice Saxe noted that until recently, some New York courts have dismissed all negligence claims where the hazard was considered “open and obvious.” Last year, though, both the Third and Second departments reversed their previous holdings on the subject, ruling in MacDonald v. City of Schenectady, 308 AD2d 125, and Cupo v. Karfunkel, 1 AD3d 48, respectively. Justice Saxe added that the First Department, in Cohen v. Shopwell, 309 AD2d 560, had also differentiated a duty to warn from the general duty to maintain a premises, as had the Fourth Department. Justice Saxe used these opinions to take aim at Presiding Justice John T. Buckley, who, Justice Saxe wrote, “suggests that we adopt the broad rule that was recently reconsidered and roundly rejected by the other Departments” of the state. “He believes that a landowner should have no legal duty to remedy an open and obvious hazard,” Justice Saxe wrote. “This viewpoint stands in stark contrast to the basic concepts of premises liability: it would allow a landlord to leave unrepaired a dangerous defect, as long as it was obvious enough. We cannot accept this proposition.” Justice Saxe said Justice Buckley’s concern over a proliferation of dubious claims and “unlimited or insurer-like liability” were “overwrought and unwarranted.” In his opinion, Justice Buckley agreed that Ms. Westbrook’s claim should be reinstated since it could not be determined whether the box was and “open and obvious” hazard. However, he said, the majority ruling would defeat the purpose of the “open and obvious” doctrine, the general reasoning of which applies to a landowner’s general duty to maintain a premises. Describing a condition as open and obvious, Justice Buckley said, “is another way of stating that it is not foreseeable, within the meaning of tort law, that someone will be injured in connection with a patent hazard, and thus there is no basis for imposing liability on the landowner. Accordingly, the fact that a hazard is open and obvious cannot be just another factor in an analysis of foreseeability, as the Third Department has found.” Justice Buckley added: “A contrary rule would preclude landowners from availing themselves of the least expensive manner of preventing accidents, i.e., giving a warning, and impose upon them the cost of removing, altering or barricading conditions deemed to constitute a hazard, or else the financial burden of serving as the insurer of those who disregard patent dangers or fail to use their ordinary senses.” Justices Betty Weinberg Ellerin and Luis A. Gonzalez concurred with Justice Saxe. Justice George D. Marlow concurred with Justice Buckley. Arnold E. DiJoseph III of DiJoseph & Portegello represented Ms. Westbrook on appeal, along with the Law Office of Avi D. Caspi. Paul K. Ryan of Downing & Peck represented the supermarket.

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