New York continues to refine its rules relating to an “open and obvious”
condition. Some courts have held that such a condition can negate the
defendant’s duty of care. Others have ruled that the visibility of a hazardous
condition was only relevant on the issue of the plaintiff’s comparative
In Saretsky, the plaintiff apparently fell when she
failed to notice a transition step in a public sidewalk designed to accommodate
a difference in elevation in the area. The step was a shade similar to the
surrounding sidewalk with some worn red paint on the front edge of the
Plaintiff’s excuse for her fall was simple: she became “optically
confused” because of the allegedly poor design of the step. The trial court
rejected the proffered excuse as nonsense but the Appellate Division demurred,
holding in a bluntly worded opinion that whether a hazard was open and obvious
is only relevant on the issue of comparative negligence.
failure of common sense and personal responsibility? New York’s highest court
has yet to decide that issue so stay tuned.