The “Open and Obvious” Doctrine Has Natural Growth.

In Melendez v City of New York, the 13 year-old plaintiff fell off the ledge at the top of a waterfall within the grounds of Bronx River Park. The plaintiff went beyond a pipe rail fence and walked out onto the ledge of the waterfall. He then slipped and fell into the water. After a trial on the issue of liability, the court granted the City’s motion to set aside the verdict. In affirming this decision, the First Department held that the waterfall and slippery ledge were both “open and obvious.” Plaintiff’s opposition relied on Westbrook v WR Activities-Cabrera Mkts. 5 AD3d 69 (2004), where the First Department previously rejected the open and obvious doctrine. In the oft-cited Westbrook decision, the court concluded the doctrine merely negated a duty to warn of the hazard, not the duty to maintain premises in a reasonably safe condition. Now, in Melendez, the court has adopted the post-Westbrook rule that the doctrine can apply to “natural geographic phenomena”. This holding follows other Departments that have applied this exception to natural conditions including a whirlpool, a ten-foot cliff and a ravine.

http://www.nycourts.gov/reporter/3dseries/2010/2010_06392.htm

Special thanks to Bill Kirrane for his contributions to this post. If you haven an questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.