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Overcoming an ‘Open and Obvious’ Defense Argument to Get Your New York Trip and Fall Case to Trial

When you are pursuing a trip-and-fall case, you will inevitably face many challenges along the way. One of the obstacles you may face is an argument from the other side that you were the one who was responsible for your own injuries. There can be many ways to present this argument, including contending that the hazard that injured you was open and obvious and you should have taken action to protect yourself. It is important to be prepared for this and to have the ammunition you need to overcome this assertion. With representation from a knowledgeable New York premises liability attorney, you can present the proof you need to overcome these types of defenses.

One case in which the issue of an “open and obvious” hazard took center stage was the injury action filed by a Rochester pedestrian named Linda. Linda was walking in the central business district of Rochester when she fell and was injured. The pedestrian tripped when she was walking in an alleyway near an office building and fell over a speed bump in the alley. According to the woman, despite the speed bump’s size, it was not easy to spot. It was allegedly next to a marked pedestrian crosswalk and was painted the same as the crosswalk. This paint job made it difficult to notice that the traffic device was actually an elevated bump, rather than just another part of the flat crosswalk, according to the pedestrian’s lawsuit.

Since the speed bump was a sizeable thing, the building owner, who was the defendant in this case, argued that the bump was open and obvious and that, since it was open and obvious, the owner could not be liable for the woman’s failure to see it (and the injuries that resulted).

The trial court ruled against the building owner and allowed Linda’s case to proceed to trial. The court agreed with the building owner that New York law does not require property owners to provide warnings when it comes to open and obvious hazards because the hazard’s openness and obvious visibility “is a warning in itself.”

The woman was successful in stopping the building owner’s “open and obvious” argument, however, because of the way that the law in New York looks at potentially open and obvious hazards in trip-and-fall cases. The surrounding circumstances matter a lot. A hazard that might be open and obvious in one circumstance might not be if the relevant facts are different. If the setting obscures the hazard or creates a distraction for the pedestrian, a hazard that might otherwise have been open and obvious may instead be something that is a valid basis for a successful trip-and-fall case.

In your trip-and-fall case, the other side may bring in various types of evidence and argue that this proof necessarily dooms your case. It is important to be ready to challenge these arguments. In Linda’s case, the building owner brought in evidence that it was compliant with all of the relevant regulations and building codes. This proof of compliance, it argued, meant that it could not be found negligent. The appeals court explained that this was not true. Proof of code and regulatory compliance was just one factor among many that the jury could consider in deciding if the building owner was liable to the woman.

The diligent Queens premises liability attorneys at Newman, Anzalone & Newman have been helping injured people for many years achieve successful results and get the recoveries they deserve. To schedule a free consultation with one of our qualified attorneys, contact us toll-free at 877-754-3099 or through our website.

More Blog Posts:

Injured Delivery Person Allowed to Pursue Case Against New York City Hospital for Dangerous Ramp, New York Personal Injury Lawyers Blog, Dec. 6, 2017

What the Phrase ‘Optical Confusion’ Means and How it Can Help You in Your New York Premises Liability Case, New York Personal Injury Lawyers Blog, Sept. 13, 2017

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