In Bellini v Gypsy Magic Enters., Inc., the Appellate Division, Second Department held that plaintiff’s complaint should have been dismissed. Plaintiff alleged that she sustained injuries after she tripped and fell over a wheel stop located in a parking lot of a strip mall in Wantagh.
“While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous. Generally [a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm.”
The court held that the defendants established that the wheel stop over which plaintiff allegedly tripped was open and obvious and not inherently dangerous, and plaintiff failed to raise a triable issue of fact.
Specifically:
During her deposition, the plaintiff acknowledged that a photograph she was shown depicted the exact location of the wheel stop as it appeared on the day of her accident. In that photograph, the wheel stop was partially in front of the defendants’ store, and was both at the edge of the parking lot and adjacent to a walkway. The cement-colored wheel stop was raised several inches above both the walkway and the black-top parking lot. Moreover, the plaintiff testified during her deposition that she noticed the wheel stops in the parking lot shortly before her accident, and that she was consciously trying to step over the wheel stop at issue when her foot made contact with it. Thus, the plaintiff’s own deposition testimony established that the open and obvious nature of the subject wheel stop was apparent to her.