Simon v Plainview Ave. Assoc.

Holding The Appellate Division reversed the lower court’s grant of summary judgment, finding that the plaintiff’s testimony raised triable issues of fact regarding whether the forklift was an open and obvious hazard. The court determined that the forklift’s location in the aisle, which prevented the plaintiff from positioning his cart, created a potentially inherently dangerous condition.

The court’s words

A landowner has a duty to maintain its premises in a reasonably safe condition

2026 NY Slip Op 05205, at the official text

However, a landowner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous

2026 NY Slip Op 05205, at the official text

The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances

2026 NY Slip Op 05205, at the official text

Here, the defendants' submissions failed to eliminate all triable issues of fact as to whether the forklift was open and obvious and not inherently dangerous

2026 NY Slip Op 05205, at the official text

Some hazards, although discernable, may be hazardous because of their nature and location

2026 NY Slip Op 05205, at the official text

the plaintiff's deposition testimony raised a triable issue of fact as to whether the forklift's location, in relation to the five quarter decking the plaintiff was loading into his cart when the accident occurred, constituted an inherently dangerous condition

2026 NY Slip Op 05205, at the official text

he could not put his cart right next to the location in the aisle where he was retrieving the five quarter decking because the forklift was in the way

2026 NY Slip Op 05205, at the official text