In 2004, the Appellate Division had limited the “open and obvious” defense in the case of Westbrook v. WR Activities stating that “the duty to maintain premises in a reasonably safe condition is analytically distinct from the duty to warn, and that liability may be premised on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn.”  However, the doctrine can still be used to obtain summary judgment.  In Holdos v. American Consumer Shows, Inc., the plaintiff tripped over a yellow and blue cable cover while attending a trade show in a community college gymnasium.  In affirming the decision that granted the defendant summary judgment, the 2^nd Department held that there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.  Thus, a defendant can still prevail on the defense of the claimed condition being open and obvious provided the defendant presents evidence that the condition is not inherently dangerous.

Thanks To Bill Kirrane for his contribution to this post.

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http://www.nycourts.gov/reporter/3dseries/2012/2012_00489.htm