The Appellate Division, First Department in this recent decision has recently joined the Second and Third Departments in their two-pronged analysis of open and obvious dangers. The first prong is whether there is a duty to warn of the defect and the second is whether, even if no duty to warn exists, the landowner kept its premises in a reasonably safe condition in light of the open and obvious defect. This two-pronged analysis emanates from the Court of Appeals’ 2001 decision, Tagle v. Jakob. Although the Court in Tagle does not explicitly set forth the two-pronged analysis, the Third Department in MacDonald v. City of Schenectady seemed to start this analysis. Since MacDonald, most every open and obvious case has followed the two-pronged approach, including the Second Department in Cupo v. Karfunkel.

I am not quite sure if the Court of Appeals’ holding in Tagle supports such interpretation, and since the Appellate Division Departments seem to line up all on the same side of the issue, the Court will likely not address the issue for awhile. However, the Court might want to put its imprimatur on the two-pronged approach at some point in the near future.