In Fishelson v. Kramer Properties, 2015 NY Slip Op 08380, the plaintiff fell while descending a single-step riser inside a bagel shop.  The plaintiff testified that the riser created an optical illusion causing him not to see it and that, as he was falling, he reached for a handrail that was not present.  The owner/tenant moved for summary judgment arguing that the step was not dangerous, was NYC Code compliant, and that they had no duty to warn against an open and obvious condition.  The lower court denied the motion.

In reversing the lower court’s decision, the Second Department held that owners/tenants have a duty to maintain the property in a reasonably safe condition but are not required to protect or warn against open and obvious conditions that are not inherently dangerous.  The Appellate Division found that there was no triable issue of fact because the plaintiff testified that he saw the step before descending it.  Accordingly, the plaintiff’s argument that the step was somehow defective due to an optical illusion was contrary to his admission that he saw the step before he began descending it.  The Court also found that the Building Code did not require a handrail and, accordingly, the argument that a handrail would have prevented the accident did not raise a triable issue of fact.

This case falls in line with countless New York City cases that give the owner/tenant of a property some leeway as to what liability will befall them as a result of hazardous conditions on the property.  In sum, owners must maintain a safe premise but need not warn against conditions so obvious any person even remotely watching where they were going would see it.

Special thanks to Georgia Stagias for her contributions to this post. For more information, please e-mail Bob Cosgrove .