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A property owner may still be liable in a tort claim even if a dangerous condition is open and obvious, a New York appeals court ruled Tuesday in a contentious opinion. Three justices of the Appellate Division, 1st 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 1st Department in line with the 2nd and 3rd departments, which last year rejected previous holdings in arriving at similar conclusions on tort liability. In Westbrook, however, two 1st 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. 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. 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 Katz’s ruling, the 1st Department first unanimously held that the box could not be called an open and obvious hazard without a trial, since Westbrook fell over it as she rounded a corner. “Additionally,” 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.” 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 3rd and 2nd 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 1st 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 4th Department. Saxe used these opinions to take aim at Presiding Justice John T. Buckley, who, 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,” 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.” 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, Buckley agreed that 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, 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 3rd Department has found.” 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 Saxe. Justice George D. Marlow concurred with Buckley. Arnold E. DiJoseph III of DiJoseph & Portegello represented 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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