Trip and Fall accidents

In trip and fall cases, defendants will often argue that a defect was "open and obvious," thus the injured plaintiff should have seen the defect. This claim, however, should not be fatal to a claim. Under the theory of comparative negligence, just because the plaintiff may be partly responsible for the happening of an accident, doesn't mean that the case is over. This issue was recently addressed by an appellate court. In Saretsky v. 85 Kenmare Realty Corp., the plaintiff, Saretsky was hurt when she fell off a raised walkway in front of defendant's building after exiting a store. The platform-like raised walkway extends some 4½ feet from the building's face and ends at a 5-inch-high transition step at the center of the sidewalk. At a General Municipal Law §50-h hearing, Saretsky asserted she did not see the transition step, which she claimed was dangerous and trap-like. Supreme Court summarily dismissed her personal injury action after interpreting her claim that she did not see the purportedly "open and obvious" step as being that "she fell because she wasn't looking." Discussing Westbrook v. WR Activities-Cabreara Mkts. and Chafoulias v. 240 E. 55th Street Tenants Corp., and noting that her theory of "optical confusion" was supported by the record, the First Department reversed and reinstated the personal injury complaint. The panel ruled that the lower court's determination was error. Citing Westbrook, it reiterated the "well established principle" that a finding of "open and obvious" as to a hazardous condition is not fatal to a plaintiff's negligence claim. Rather it is relevant only to plaintiff's comparative fault. Therefore, summary dismissal of Saretsky's complaint was inappropriate.