You can almost hear the sigh of relief from the plaintiff's attorneys after receiving the appellate court's decision in Gaudiello v. City of New York, a Queens County trip and fall case
Everything was going right - the plaintiff testified - clearly - that he tripped and fell over a defective sidewalk, and the defendants did not produce any witnesses to controvert his testimony. But then the jury came back with a verdict - for the DEFENSE.
How is that possible?
It turns out that the jury felt that defective condition was open and obvious, and therefore, the trip and fall accident wasn't the defendants' fault. Apparently, the jury was heavily influenced by the judge,who instructed the jury that "[a] pedestrian is charged with the responsibility of looking where they are going and is presumed and bound to see what by the proper use of their senses there is to see."
Fortunately for this plaintiff, the appellate court found that this instruction to the jury ("jury charge") was an incorrect application of the law, and therefore, he was entitled to a new trial. To the contrary, the court held, the correct application of the law would have been that if the jury felt the condition was open and obvious, that would not effectively bar plaintiff's claim; rather, that factor would be included in considering the degree of the plaintiff's relative fault for the accident. For additional information on this topic, please see "How NY Property Owners Can Be Liable Even for the Open and Obvious."