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
negligence.

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
step.

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.

A colossal
failure of common sense and personal responsibility? New York’s highest court
has yet to decide that issue so stay tuned.

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http://www.nycourts.gov/reporter/3dseries/2011/2011_03979.htm