Ava Maynard Successfully Defends “Open and Obvious” Decision in the Second Department

The Appellate Division, Second Department unanimously affirmed the lower Court’s decision granting summary judgment to GVK’s client, a paving contractor. Plaintiff-Appellant, a pedestrian, tripped and fell on a chain that was suspended approximately 4-5 inches above ground between two posts.

GVK successfully argued in the Supreme Court, Kings County that the paving contractor had no liability under the Espinal doctrine, as it was an independent contractor that did not launch a force of harm. It was argued that the paving contractor had no obligation to maintain the chain under its contract with the property owner and was not the entity that actually placed the chain. In addition, GVK argued that, since the accident during daylight and was readily observable by the reasonable use of one’s senses, the chain was open and obvious and not inherently dangerous.

The Appellate Division, Second Department adopted GVK’s arguments and, in particular, that the chain was not inherently dangerous and constituted an open and obvious condition. GVK’s client was also awarded a bill of costs for the appeal.

The decision was particularly important because the Appellate Division, Second Department typically denies similar motions on the grounds that whether a condition is open and obvious is a question for the jury. Possible reasons for this defendant-friendly decision in an otherwise plaintiff-leaning appellate court, include the clear and undisputed facts surrounding the accident and the interpretation that a chain is not inherently dangerous absent other factors, as well as the emerging trend of courts to dismiss cases when appropriate due to the backlog created by COVID-19.