Simon v Plainview Avenue Associates
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Attorneys and Parties
Brief Summary
Retail premises liability involving a customer trip-and-fall over a forklift parked in a store aisle while loading building materials.
The Supreme Court, Nassau County, granted summary judgment to Home Depot U.S.A., Inc. and Home Depot Store #1208 and dismissed the complaint against them, finding the condition open and obvious and not inherently dangerous.
The Appellate Division reversed the order granting summary judgment and reinstated the complaint insofar as asserted against the Home Depot defendants.
The defendants failed to eliminate triable issues of fact as to whether the parked forklift, particularly its location next to the shelving where the plaintiff was retrieving a long board, was open and obvious and not inherently dangerous. The plaintiff's testimony that the forklift blocked him from placing his cart next to the product created a factual issue for a jury.
Background
The plaintiff alleged that he was injured in a Home Depot store when he tripped over the fork portion of a forklift parked in an aisle. At the time, he was trying to move a piece of 'five quarter decking,' described as a 10-foot-long board weighing about 10 to 15 pounds and measuring approximately 5 1/2 inches wide, from aisle shelving into his cart. He testified that he could not place his cart directly next to the shelving because the forklift was in the way.
Lower Court Decision
After discovery, Home Depot U.S.A., Inc. and Home Depot Store #1208 moved for summary judgment dismissing the complaint against them. They argued that the alleged condition was open and obvious and not inherently dangerous. The Supreme Court, Nassau County, accepted that position and granted the motion.
Appellate Division Reversal
The Appellate Division, Second Department, reversed. It held that a landowner must maintain premises in a reasonably safe condition and that whether a condition is open and obvious or inherently dangerous depends on the surrounding circumstances and is usually a jury question. The court found that the defendants' proof did not eliminate all triable issues of fact, especially given the forklift's location in relation to the long decking the plaintiff was attempting to load. Because the defendants did not meet their prima facie burden, summary judgment should have been denied regardless of the adequacy of the plaintiff's opposition.
Legal Significance
This decision reinforces that in New York premises liability cases, a visible condition does not automatically entitle a defendant to summary judgment. Even a discernable hazard may still be actionable if its nature and placement make it dangerous under the specific circumstances. The case emphasizes that the 'open and obvious' and 'not inherently dangerous' defenses are often fact-intensive and unsuitable for summary resolution.
Retail defendants cannot obtain summary judgment merely by showing that an obstacle was visible; they must also show that its placement did not create an inherently dangerous condition. Where store layout or equipment positioning interferes with how a customer must handle merchandise, liability issues are likely for a jury.