Juoniene v. H.R.H Contr. Corp.

Open and Obvious – Issue of Fact Existed
Landowner Maintained Property in a Reasonably Safe Condition – Issue of Fact Existed

The Appellate Division, First Department in a recent decision built on their interpretation of the open and obvious doctrine in Westbrook v. WR Activities-Cabrera Markets (discussed in this prior post). In this case, the plaintinff struck her head against a pipe that extended outward from a building under construction over a portion of sidewalk. The plaintiff admitted that she was looking down while walking past the building because of the sun’s glare. She also admitted that she had known that the building was under construction.

The First Department reversed the Supreme Court’s holding that dismissed the action on the ground that the danger was open and obvious. Citing Westbrook, the First Department held that the condition was not such a danger that was inherently obvious. The Court noted that the pipe could be overlooked by a reasonable person. Also, the Court concluded that even if the pipe were open and obvious, that did not preclude a finding of liability against the defendant construction contractor. The contractor still had to raise a triable issue of fact concerning whether it maintained the property in a reasonably safe condition.