While an owner or possessor of real property has a duty to maintain the property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous. Here, the defendants failed to establish, prima facie, that the condition of the floor that caused the plaintiff to fall was open and obvious and not inherently dangerous. Surveillance video footage submitted by the defendants reveals that an employee had mopped the floor of the aisle shortly before the plaintiff fell and that the dangerous condition created by the dampness on the floor in that area was not plainly visible. At the time the plaintiff fell, the employee was mopping a separate area behind a booth, not the area of the aisle where the plaintiff fell. The plaintiff testified at deposition that, prior to her fall, she did not observe the employee mopping the floor or any water on the floor. Moreover, contrary to the defendants' contention, they also failed to eliminate all triable issues of fact as to whether they provided adequate warning of a potentially hazardous condition. The surveillance video shows one "Wet Floor" sign located in an area of the restaurant that was a significant distance from the area where the plaintiff fell. While the employee testified at deposition that she placed a sign in the area where the plaintiff fell, the plaintiff testified that she did not see a sign in the area where she fell, and the surveillance video does not clearly depict a sign in that area. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the motion for summary judgment dismissing the complaint is denied, without regard to the sufficiency of the plaintiff's opposition papers.
Hoffman v. Dean C Ltd Partnership, NY Slip Op 03684 (2d Dep't July 3, 2024)
