Back in February, 2009, we discussed whether the placards that are commonly and prominently displayed in sporting arenas stating: "Play at Your Own Risk" have any validity under New York law. And in that blog article, we noted that if someone is injured while at one of these places, the question as to whether their case would survive would likely turn on whether the dangerous condition that led to their injury was either open and obvious or latent.
A 2003 decision from New York's Appellate Division, Second Department further clarifies the how a plaintiff can prove that the property owner was negligent even when the condition that led to the injury was patent.
In Cupo v. Karfunkel, the appellate court acknowledged that some of its earlier decisions had proven unclear as to whether a finding that a hazardous condition at a defendant's property was open and obvious would inherently act as a bar to any negligence claims or not. Therefore, the appellate court clarified the rule as follows:
"Where a plaintiff has presented evidence that a dangerous condition exists on the property, the burden shifts to the landowner to demonstrate that he or she exercised reasonable care under the circumstances to remedy the condition and to make the property safe, based on such factors as the likelihood of injury to those entering the property and the burden of avoiding the risk. Evidence that the dangerous condition was open and obvious cannot relieve the landowner of this burden. Indeed, to do so would lead to the absurd result that landowners would be least likely to be held liable for failing to protect persons using their property from foreseeable injuries where the hazards were the most blatant. We ... hold that proof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence."