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The fact that a hazard is open and obvious does not absolve a store owner from liability if a customer is distracted from observing it or might not expect it, the 2nd U.S. Circuit Court of Appeals ruled Monday. Confronting a split of opinion on tort law in New York State, a two-judge panel said it was confident that if New York’s Court of Appeals considered the issue, it would adopt that limitation on liability for open and obvious hazards. The ruling in Michalski v. The Home Depot, 99-7849, reinstated the case of a woman who alleged she was injured when she fell over a wooden pallet while perusing merchandise in a store aisle. Plaintiff Jacqueline Michalski claimed the injury occurred while she was standing in an aisle at a Home Depot in Schenectady, N.Y., and looking up at some cabinets she hoped to buy. She said that she backed into the pallet, which was sitting some four inches off the ground on a forklift. Northern District Judge Frederick J. Scullin Jr. granted summary judgment for Home Depot, construing New York law as demanding that the store could not be liable for a fall over an object that was open and obvious. Scullin said that while the New York Court of Appeals had not spoken directly on the issue, the Appellate Division, 3rd Department, had addressed it, and concluded that an obvious hazard precluded owner liability. On appeal, the 2nd Circuit said Scullin had reasoned “that this was the law that would have been applied in the state trial court in the district where the accident occurred and where the suit was originally filed,” the 3rd Department. “As appealing as this notion might be as a means of deciding what law to apply, taking this shortcut led to the wrong result,” said Senior Judge Richard J. Cardamone. “Instead, the proper approach was for the trial court — through examination of New York, and, if necessary, other jurisdictions’ case law — to have essayed a prediction on whether the New York Court of Appeals would rule that the open and obvious nature of a hazard precludes landowner liability.” SPLIT AMONG COURTS Despite the 3rd Department’s view, Cardamone said, other New York State Appellate Divisions have a different rule for open and obvious dangers. For example, he said, the 4th Department, in Morgan v. Genrich, 239 AD2d 919 (1997), has found that the fact that a hazard is readily observable “may be relevant to the issue of plaintiff’s comparative negligence, but it does not negate the duty of defendants to keep their premises reasonably safe.” So with a split between Appellate Divisions, Cardamone said, “We see nothing in state policy or precedent that would lead the New York Court of Appeals to run counter to the modern trend away from the traditional open and obvious doctrine in cases involving premises liability.” Under the circumstances of this case, he said, “a duty to protect or warn the customer could arise on two different theories,” the first being that a customer would not expect to find the dangerous condition where it is. The second theory is that displays at eye-level or above might distract the plaintiff to the extent that she could not “reasonably have been expected to observe the condition.” ” … [W]e think the New York Court of Appeals would adopt the reasoning of Restatement (Second) of Torts Section 343A and the majority of other jurisdictions,” he said, ” … which hold that the open and obvious nature of a dangerous condition on its property does not relieve a landowner from a duty of care where harm from an open and obvious hazard is readily foreseeable by the landowner and the landowner has reason to know that the visitor might not expect or be distracted from observing the hazard.” CASE REMANDED On remand, Cardamone said that several questions need to be resolved, including “whether the pallet over which Michalski tripped was in fact a hazard and whether it was an open and obvious condition.” If so, he said, the jury must then decide whether Home Depot breached its duty of care to Ms. Michalski and if “she, too, was partly at fault under the principles of comparative negligence.” “We think there are ample facts in the record to allow a reasonable jury to find that the pallet over which Michalski tripped was a hazardous condition, that it was not an open and obvious condition or, even if it were, Home Depot still breached its duty to protect or warn Michalski,” he said. Judge Fred I. Parker joined in the opinion. Krishna K. Singh of Amsterdam, N.Y.-based Horigan, Horigan & Lombardo represented Michalski. Jessica Desany and James A. Resila of Albany’s Carter, Conboy, Case, Blackmore, Napierski & Maloney represented Home Depot.

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