First Department Grants Summary Judgment to Plaintiff in Premises Liability Action; Open and Obvious Nature of Condition Does Not Preclude Granting Relief

In April 2018, the Court of Appeals decided Rodriguez v. City of New York, 31 NY3d 313 (2018), which held that on a motion for summary judgment, an injured plaintiff was not required to demonstrate absence of his own comparative fault in order to obtain partial summary judgment on the issue of liability in a negligence action, since contributory negligence did not bar recovery of damages for personal injury, but merely diminished any damages award. The requirement in the summary judgment rule that the movant show there was no defense to the cause of action did not apply to the issue of comparative fault, given that there was not a complete defense to any element of the negligence cause of action.

 Rodriguez involved in a motor vehicle accident, where a sanitation truck in snowy conditions skidded and crashed into another vehicle, which propelled that vehicle into the plaintiff, causing injuries.

 Now, the First Department has applied the holding in Rodriguez in a premises liability action.

 In Derix v  Port Authority of New York & New Jersey, 162 A.D.3d 522 (1st Dept. 2018), the plaintiff tripped and fell on a yellow plastic chain lying across the ground. The plaintiff moved for summary judgment on liability on his negligence claim. The Court held that the plaintiff had established, prima facie, that the defendant had created or had notice of the dangerous condition on which he tripped and fell, based on his own testimony, the testimony of an employee eyewitness, and a non-party witness, as well as defendant’s internal reports and incident reviews. In totality, the evidence showed the defendant controlled, but left the plastic chain unattended.

 The defendant, conversely, had failed to raise an issue of fact. Although it claimed that the plaintiff was unable to identify the cause of his fall, the Court found that that was unsupported by the record, and found speculative the argument that black ice contributed to the accident.

 Most interesting, the Court rejected defendant’s argument that the chain on which the plaintiff tripped was open and obvious as a defense to a finding of liability, because based on Rodriguez, that issue was also relevant to comparative fault and therefore did not preclude summary judgment as to defendant’s liability.

 The Derix decision is only one of the first of many court decisions that will likely be impacted by the holding in the Rodriguez case, but overall, it is not clear the significance of that impact. Legally, while it does not preclude the defendant from asserting comparative fault on behalf of the plaintiff at the time of trial, the finding of liability on the behalf of the defendant obviously decides that issue, as well as serves to start the interest running on any future damages award from the date of the decision trough the time of the trial. This may place pressure on defendants to trial or settlement faster in high value damages cases.