In Panagos v. Brooklyn Botanic Garden Corp. (decided Sept. 2, 2014), a trip-and-fall case, the Supreme Court, Queens County denied defendant’s motion for summary judgment dismissing plaintiff’s complaint.
In this personal injury case, plaintiff (a 73 year-old woman) sued after sustaining injuries after tripping and falling on a series of three steps near the Cherry Esplanade and Rose Arc Pool at the Brooklyn Botanical Gardens.
Specifically, she alleged in her bill of particulars “that she fell due to the change of the elevation of the steps along the pathway and that the steps were negligently designed, constructed and maintained” and that “the steps were defective because there was no visual cue as to the change in elevation; the stair treads were improperly designed and too deep; and there was a failure to warn of the existence of the steps.”
The court summarized the law as follows:
While a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty on the part of a landowner to warn against, and a court is not precluded from granting summary judgment, where the condition complained of is an open and obvious condition that is readily observable by those employing the reasonable use of their senses and is not inherently dangerous. No duty exists to prevent or even warn of conditions which can be readily perceived by the use of ones senses.
However, under the circumstances of this case, defendant was not entitled to summary judgment on liability, because the allegedly defective condition (the steps on which plaintiff fell) was not “open and obvious” as a matter of law.
[T]he defendant failed to establish prima facie, that the steps which allegedly caused plaintiff to injure herself was open and obvious, was not inherently dangerous, and did not present an unreasonable or foreseeable risk of harm. The testimony of the plaintiff, as well as the photographs submitted, demonstrate that because of the long length and width of the steps, the width being almost the width of the entire pathway, and the small drop in each step, that there is a question of fact as to whether the design of the steps creates an illusion of a flat or level surface which obscured the steps when walking towards the direction of the descending steps. The photographic evidence shows that the illusion is much more prominent and the stairs much less discernable for those walking down the steps rather than up.
Thus, based upon the design of the steps, under certain lighting conditions there appears to be an optical illusion or optical confusion which could cause the perception that the pathway is level. As it appears that there was no obvious drop in elevation, one could believe that they were walking on a straight pathway and stumble on the step that was very shallow in depth and could be found to be imperceptible. “Optical confusion” occurs when conditions in an area create the illusion of a flat surface, visually obscuring any steps. Even visible hazards do not necessarily qualify as open and obvious because of the nature or location of some hazards, while they are technically visible, make them likely to be overlooked. … Here, there was no evidence that the defendant attempted to mark or distinguish the steps in any meaningful fashion. …
Therefore, this court finds that [t]he evidence … raises a question of fact as to whether, under the circumstances, a person who was unfamiliar with the premises could reasonably perceive the existence of a change in elevation when walking down the pathway or whether the subject area created “optical confusion”. Therefore, as the defendant did not post warning signs or contrast the surface colors or risers to alert a pedestrian to the slight change in levels, triable issues of fact exist as to whether the condition of the steps was open and obvious and not inherently dangerous and whether defendant was negligent in failing to provide any warning, visual cues, or barriers. (Emphasis added.)