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Landlord Liability and the “Open and Obvious” Hazard

If you suffered a trip and fall or slip and fall accident on someone’s property, you probably feel you’re entitled to compensation. There was a hazardous condition on the property, and the landlord should have known better! However, the law must also ask whether you, too, should have known better.

New York premises liability law requires a landlord or lessee with control over a premises to maintain the property in a reasonably safe condition in view of all the circumstances. If a visitor to a property encounters a hazard and sustains an injury, the court considers whether the landlord’s action or inaction with regard to the hazard was reasonable. One factor that plays an important role in this analysis is whether the hazard was “open and obvious” to the visitor. Traditionally, a landlord was not liable for injuries caused by an obvious hazard, because the visitor can readily see the danger. The landlord has no duty to warn of a condition that visitors can assess for themselves.

This rule is beneficial to the landlord, because it allows for the least expensive means of dealing with a hazard. Rather than paying to have an unsafe condition repaired or removed, all a landlord must do is make it obvious. Take, for example, the restaurant floor that has a slight step-down from the maître d’ stand to the dining area. Leveling the floor to eliminate the step could be very costly, whereas painting the edge of the step bright yellow to indicate a change in level is cheap and easy.

However, misapplication of this rule can lead to increased danger. Imagine a staircase with a loose handrail. The landlord fears it might someday give way, so he has it removed. Now it is obvious that the staircase has no handrail. A visitor is aware of the “open and obvious” condition. But has the landlord acted prudently to make the visitor safer?

For just these reasons, the law evolved so that a landlord can still be liable for an “open and obvious” condition if the condition is considered “unreasonably unsafe” or “hazardous.” Such cases are often fact-specific and require the skill of an experienced attorney to make a persuasive argument for relief.

If you or a loved one suffered a serious injury in a slip and fall accident, consult a skilled premises liability lawyer at Barasch McGarry Salzman & Penson. Call 888.746.8212 or contact our firm online.

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