In February 2011, a woman from New York initiated an action seeking damages for personal injuries allegedly sustained as a result of a dangerous condition that existed in the parking lot of the Defendant. The Plaintiff subsequently amended her summons and complaint to add a cause of action for loss of services by her husband.
The Plaintiff underwent an Examination before trial. At her deposition, the Plaintiff testified that while she was passing through in the parking lot of a mall, she was caused to trip and fall due to a defective and dangerous condition on a speed bump. The Plaintiff testified that, prior to the accident, she saw a speed bump that was broken and cracked with white paint on it. On the day of the incident, the weather conditions were dry and sunny. At the time of the accident, the Plaintiff testified that she was wearing sneakers which went up to her ankle. As she was attempting to walk over the speed bump, the Plaintiff testified that she tripped on something. She testified that her left foot got stuck, the sneaker came off, and she went “flying”, falling forward. The Plaintiff extended both her arms to break her fall and her body came into contact with the pavement of the parking lot.
After the Plaintiff fell, she testified that she went to a security guard and remained there for approximately 15 minutes. Thereafter, the security guard requested to see where the Plaintiff fell. According to the Plaintiff, when she showed the security guard the spot where she fell, he began kicking gravel into the crack that was located on the speed bump.
The Defendants rely on the Plaintiff’s testimony in support of their argument that the condition was open and obvious, thereby freeing the Defendants from liability. Specifically, the Defendants cite the Plaintiffs sworn testimony indicating that she saw the speed bump approximately two car lengths away from her prior to the accident and made a conscious decision to attempt to walk over the speed bump anyway. The Defendants further submit that the condition was trivial in nature and not inherently dangerous.
In support of the motion, the Defendants also submit the testimony of the project manager for the Defendant. He testified that he first received notification of the Plaintiff’s accident from an incident report that was filled out by the mall security personnel. The security personnel further testified that, after receiving notification of the incident, he inspected the area where the Plaintiffs accident occurred and observed a speed bump that was painted white with a crack in it.
The security personnel testified that he conducts inspections of the area of the parking lot where the accident occurred on a weekly basis. He testified that prior to the Plaintiff’s accident, he had no notice of the condition of the speed bump, nor had there been any incidents of people tripping and falling on the speed bump.
The Defendants also rely on the testimony of the maintenance supervisor for the Defendant, who testified that everyday he was in the parking lot where the Plaintiff’s accident occurred. He testified that if a condition that needed repair was detected, he would either repair it himself or hire an outside contractor to repair the condition.
In light of the Plaintiff’s testimony that the speed bump was readily observable and the testimony of the witnesses on behalf of the Defendants, the Defendants urge that the Plaintiffs’ complaint should be dismissed.
The Plaintiffs’ counsel argues that it can be inferred from the appearance and nature of the broken portion of the speed bump that the condition did not occur overnight, but rather, was one which took time to develop and should have been readily observable by the employees of the Defendants. The Plaintiffs’ counsel references the photographs taken of the defective condition which shows a significant crack on the speed bump.
The Affidavit of the Plaintiff, states that the cracked portion of the speed bump appeared to have been painted over with white paint. The Plaintiff states in her affidavit that the cracked, missing portion of the speed bump appeared to have been approximately 12 inches by 12 inches which created a tripping hazard. The Plaintiff also submitted an affidavit which states that a large portion of the asphalt was missing from one end of the speed bump, creating a tripping hazard.
Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury. It is well settled that a landowner is under no duty to warn of a dangerous condition that is open and obvious. However, recent case law on this issue is clear that proof that an alleged dangerous condition is open and obvious does not preclude a finding of liability against the landowner.
Here, based upon the Court’s review of the photographs of the speed bump, which the Plaintiff, confirmed fairly and accurately represented the accident site, and the Plaintiff’s description of the circumstances surrounding the accident, the Defendants failed to establish that the alleged defect was trivial and, therefore, not actionable. While the speed bump in and of itself may have been open and obvious, there is an issue of fact as to whether the crack in the speed bump, large enough for the Plaintiff’s sneaker to get caught in, was in fact readily observable. Even in the event the open crack in the speed bump was readily observable, the issue is a factual inquiry as to the extent of the Plaintiff’s contributory negligence.
The Defendants also speculate that they were not on notice of the defective condition of the speed bump. The Plaintiffs claim that the Defendants had constructive notice of the defect as it was visible and apparent and existed for a sufficient length of time prior to the accident that it could have been discovered and corrected.
The evidence is insufficient to permit the jury to draw the necessary inference that a dangerous condition existed for a sufficient length of time prior to the accident to permit the Defendants’ employees to discover and remedy the condition. The mall security testified that, after the Plaintiff’s accident, upon inspection of the speed bump, he observed the crack. He also testified that he inspects the parking lot on a regular basis and had not seen the defective condition prior to the Plaintiff’s accident. It is reasonable to infer that a crack large enough for a pedestrian’s sneaker to become trapped in should be readily visible to the employees who are responsible for detecting such defects. As such, the Court cannot find, as a matter of law, that under the particular facts and circumstances presented in this case, the Defendants did not breach their duty of ordinary care to maintain the parking lot in a reasonably safe condition.
It is well settled that the open and obvious nature of the allegedly dangerous condition does not negate the duty to maintain the premises in a reasonably safe condition but, instead, bears only on the injured person’s contributory negligence.
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