Miehl v. Blue Ridge Homeowners Ass’n

The Second Department’s recent decision interpreting the open and obvious doctrine denied the defendant’s summary judgment motion even though it was established that the infant plaintiff’s failure to watch where she was going. The Court noted that even though the subject defect — a crack in the pavement of a parking lot that the defendant owned — was open and obvious, it did not negate the defendant’s duty to maintain its premises in a reasonably safe condition, citing Cupo v. Karfunkel. The open and obvious factor merely goes to issue of fact concerning the infant’s comparative negligence.