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POLISH ATTORNEY NEW YORK

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  The store manager testified at her deposition that employees of the store had put a shelf on the dolly to create a "flatbed" so that the defendant's employees could use it to carry furniture and other merchandise out to customers' cars in the parking lot.  She also testified that their usual practice was to store dollies in the stockroom immediately
 
the defendant’s store.  According to the woman, as she entered an aisle, she was looking up at items on the shelves.  She did not look down and, after taking two steps into the aisle, she tripped over an empty dolly.  Her right knee hit the dolly as she fell forward, and her whole body ultimately landed face down, on top of the dolly.  The woman testified that prior to the incident, she had not seen the dolly in the store. 
inlamp A woman was shopping when she tripped and fell over an empty dolly that had been left in an aisle at a store, causing her to sustain injuries.  The injured woman sued the owner of the store to recover damages for personal injuries, alleging that the dolly constituted a tripping hazard.  
 
The woman testified at her deposition that on the day of the accident, she wanted to purchase
a
afteruse, and that dollies are not supposed to be left unattended because they are a tripping hazard.  However, she acknowledged that, when she saw the plaintiff, there was an unattended dolly nearby, surrounded by shopping carts. 
 
The lower court granted the defendant’s motion for summary judgment dismissing the complaint on the grounds that the dolly in the aisle was open and obvious, and thus not inherently dangerous.   Plaintiff appealed. 
 
On appeal, the Second Department held that the lower court erred in granting defendant's motion for summary judgment dismissing the complaint, asThe same rule applies in the First Department, which has held that “while there is no duty to protect or warn against an open and obvious condition, the?proof that a dangerous condition is open?
 
The Court further held that the fact that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain the property in a safe condition. While such proof is relevant to the issue of the plaintiff's comparative negligence, a hazard that is open and obvious “may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted.” 
 
The Second Department reasoned that store owners are charged with the duty of keeping their premises in a reasonably safe condition for the benefit of their customers. The Court further explained that “to be entitled to summary judgment, the defendant was required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises.” 
 
the totality of the circumstances, defendant failed to eliminate triable issues of fact as to whether it created an unsafe condition for plaintiff and whether an empty dolly that plaintiff allegedly tripped and fell over was inherently dangerous. The Second Department further held that defendant failed to establish that it maintained the premises in a reasonably safe condition. under
andobvious does?not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition.”  A determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case. 
 
Here, the Second Department indicated that, due to the defendants' safety concerns, the dolly was not supposed to be left unattended, and was to be used solely by store employees, who were instructed to immediately return the dolly to the stockroom after use. The Court further pointed out that defendants' manager acknowledged that the dolly was a tripping hazard and plaintiff did not see it prior to the alleged accident.  
 
Accordingly, the Second Department reversed lower court’s decision and remanded the case for further proceedings.