condition warning in New York

2017It is well established that there is no duty to warn of an open and obvious dangerous condition “because ‘in such instances the condition is a warning in itself ” (Mazurek v Home Depot U.S.A., 303 AD2d 960, 962 [2003]; see Tagle v Jakob, 97 NY2d 165, 169 [2001]).

2016Where the condition is open and obvious, ‘the condition is a warning in itself ” (Duelos v County of Monroe, 258 AD2d 925, 926 [1999]). “[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question” (Tagle v Jakob, 97 NY2d 165, 169 [2001]; see McKnight v Coppola, 113 AD3d 1087, 1087 [2014]).

2016Where the condition is open and obvious, ‘the condition is a warning in itself ” (Duelos v County of Monroe, 258 AD2d 925, 926 [1999]). “[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question” (Tagle v Jakob, 97 NY2d 165, 169 [2001]; see McKnight v Coppola, 113 AD3d 1087, 1087 [2014]).

2016Where the condition is open and obvious, ‘the condition is a warning in itself ” (Duelos v County of Monroe, 258 AD2d 925, 926 [1999]). “[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question” (Tagle v Jakob, 97 NY2d 165, 169 [2001]; see McKnight v Coppola, 113 AD3d 1087, 1087 [2014]).

2003The rule of law which imposes no duty to warn against obvious dangers is founded in the rationale that, “[u]nder such circumstances, the condition is a warning in itself’ (Tarricone v State of New York, 175 AD2d 308, 309 [1991], supra; see Thorn-hill v Toys “R” Us NYTEX, 183 AD2d 1071, 1072-1073 [1992], supra).

2002While property owners and business proprietors have a duty to maintain their premises in reasonably safe condition (Di Ponzio v Riordan, 89 NY2d 578, 582 ; Basso v Miller, 40 NY2d 233 ), which duty includes eliminating, protecting against, or warning of dangerous, defective, or otherwise hazardous conditions, there is no duty to protect or warn against conditions that are in plain view, open, obvious, and readily observable by those “employing the reasonable use of their senses.” (Tarricone v State of New York, 175 AD2d 308, 309 , lv denied 78 NY2d 862 ; see also, Poerio v State of New York, 1

2010This provision assumes that the plaintiff knows the cause of the injuries at the time they are discovered—i.e., become manifest (see generally Matter of New York County DES Litig., 89 NY2d at 513 [“That CPLR 214-c (2)’s reference to ‘discovery of the injury’ was intended to mean discovery of the condition on which the claim was based and nothing more is . . . apparent from the legislative history of the provision”]).

2003The Court of Appeals has held that discovery of the injury means “discovery of the condition on which the claim was based” or “discovery of the manifestations or symptoms of the latent disease that the harmful substance produced” (Wetherill v Eli Lilly & Co., 89 NY2d 506, 513-514 [1997]).

2003The rule of law which imposes no duty to warn against obvious dangers is founded in the rationale that, “[u]nder such circumstances, the condition is a warning in itself’ (Tarricone v State of New York, 175 AD2d 308, 309 [1991], supra; see Thorn-hill v Toys “R” Us NYTEX, 183 AD2d 1071, 1072-1073 [1992], supra).

2003It is well settled that a landowner has no duty to warn of an open and obvious dangerous condition (see Tagle v Jakob, 97 NY2d 165, 169 [2001]), because “in such instances the condition is a warning in itself’ (Thornhill v Toys “R” Us NYTEX, 183 AD2d 1071, 1073 [1992]; see Christmann v Murphy, 226 AD2d 1069, 1070 [1996], lv denied 89 NY2d 801 [1996]).

2024In any event, defendants may not rely on their own failure to comply with this condition as a defense, as "one may not take advantage of a condition precedent, the performance of which he himself has rendered impossible" ( Kooleraire Serv. & Installation Corp. v Bd. of Educ. , 28 NY2d 101, 106 [1971]; see ADC Orange, Inc. v Coyote Acres, Inc. , 7 NY3d 484, 490 [2006]; Ctr. for Specialty Care, Inc. v CSC Acquisition I, LLC , 185 AD3d 34 [1st Dept 2020]).

2024In any event, defendants may not rely on their own failure to comply with this condition as a defense, as "one may not take advantage of a condition precedent, the performance of which he himself has rendered impossible" ( Kooleraire Serv. & Installation Corp. v Bd. of Educ. , 28 NY2d 101, 106 [1971]; see ADC Orange, Inc. v Coyote Acres, Inc. , 7 NY3d 484, 490 [2006]; Ctr. for Specialty Care, Inc. v CSC Acquisition I, LLC , 185 AD3d 34 [1st Dept 2020]).

2024In any event, defendants may not rely on their own failure to comply with this condition as a defense, as "one may not take advantage of a condition precedent, the performance of which he himself has rendered impossible" ( Kooleraire Serv. & Installation Corp. v Bd. of Educ. , 28 NY2d 101, 106 [1971]; see ADC Orange, Inc. v Coyote Acres, Inc. , 7 NY3d 484, 490 [2006]; Ctr. for Specialty Care, Inc. v CSC Acquisition I, LLC , 185 AD3d 34 [1st Dept 2020]).

2024In any event, defendants may not rely on their own failure to comply with this condition as a defense, as "one may not take advantage of a condition precedent, the performance of which he himself has rendered impossible" ( Kooleraire Serv. & Installation Corp. v Bd. of Educ. , 28 NY2d 101, 106 [1971]; see ADC Orange, Inc. v Coyote Acres, Inc. , 7 NY3d 484, 490 [2006]; Ctr. for Specialty Care, Inc. v CSC Acquisition I, LLC , 185 AD3d 34 [1st Dept 2020]).

2017It is well established that there is no duty to warn of an open and obvious dangerous condition “because ‘in such instances the condition is a warning in itself ” (Mazurek v Home Depot U.S.A., 303 AD2d 960, 962 [2003]; see Tagle v Jakob, 97 NY2d 165, 169 [2001]).

2012It is well established that there is no duty to warn of an open and obvious dangerous condition (see Tagle v Jakob, 97 NY2d 165, 169 [2001]), “because ‘in such instances the condition is a warning in itself ” (Mazurek v Home Depot U.S.A., 303 AD2d 960, 962 [2003]).

1997As we recently observed in Rothstein v Tennessee Gas Pipeline Co. ( 87 NY2d 90, 93 ), CPLR 214-c was enacted to overcome the effect of a line of Court of Appeals decisions holding that toxic tort claims accrue upon "impact” or exposure even though the resulting illness may not be manifested for a long time thereafter (Sponsor’s Mem in Support of L 1986, ch 682, 1986 NY Legis Ann, at 287; see, e.g., Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008 ; Thornton v Roosevelt Hosp., 47 NY2d 780 ; Reis v Pfizer, Inc., 48 NY2d 664 ; Schwartz v Heyden Newport Chem.

1997As we recently observed in Rothstein v Tennessee Gas Pipeline Co. ( 87 N.Y.2d 90, 93 ), CPLR 214-c was enacted to overcome the effect of a line of Court of Appeals decisions holding that toxic tort claims accrue upon "impact" or exposure even though the resulting illness may not be manifested for a long time thereafter (Sponsor's Mem in Support of L 1986, ch 682, 1986 NY Legis Ann, at 287; see, e.g. , Matter of Steinhardt v Johns-Manville Corp. , 54 N.Y.2d 1008 ; Thornton v Roosevelt Hosp. , 47 N.Y.2d 780 ; Reis v Pfizer, Inc. , 48 N.Y.2d 664 ; Schwartz v Heyden Newport Chem.

2025In opposition defendant argues that the defect was trivial and that “a defendant may not be [held liable] for negligent maintenance by reason of trivial defects on a walkway” (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 78 [2015]).

2018"It is well established that there is no duty to warn of an open and obvious dangerous condition because in such instances the condition is a warning in itself" ( Schneider v Corporate Place, LLC , 149 AD3d 1503, 1504 [4th Dept 2017] [internal quotation marks omitted]).

2014People v Letterlough ( 86 NY2d 259, 261 [1995]) involved a sentence imposed for the crime of driving while intoxicated, which included as a condition of probation, that the defendant affix to his license plate a fluorescent sign stating “Convicted DWI.” The Court found that such a sentence was not expressly authorized by the legislature, drawing an analogy to Penal Law § 65.10, which had recently been amended to include the imposition of IID as a condition of a sentence including probation or conditional discharge (id. at 268-269).

2010School Dist., 74 AD3d at 1654-1655 ; Mosquera v Orin, 48 AD3d 935, 936-937 [2008]; Martin v RP Assoc., 37 AD3d 1017, 1018-1019 [2007]).

2010School Dist., 74 AD3d at 1654-1655 ; Mosquera v Orin, 48 AD3d 935, 936-937 [2008]; Martin v RP Assoc., 37 AD3d 1017, 1018-1019 [2007]).

2003Stated otherwise, “ ‘there should be no liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent as a warning would have provided’ * * * as no benefit would be gained by requiring a warning” (Liriano v Hobart Corp., 92 NY2d 232, 242 [1998], quoting Prosser and Keeton, Torts § 96, at 686 [5th ed]).

2003It is well settled that a landowner has no duty to warn of an open and obvious dangerous condition (see Tagle v Jakob, 97 NY2d 165, 169 [2001]), because “in such instances the condition is a warning in itself’ (Thornhill v Toys “R” Us NYTEX, 183 AD2d 1071, 1073 [1992]; see Christmann v Murphy, 226 AD2d 1069, 1070 [1996], lv denied 89 NY2d 801 [1996]).

2003The “no duty” open and obvious rule continues to apply throughout the state in negligence actions in which, unlike the matter at hand, liability is sought to be imposed principally on the basis of a landowner’s or lessee’s failure to warn of a readily observable danger (see, Tagle v Jakob, 97 NY2d 165, 169 [2001] [no duty to warn of open and obvious danger posed by electric transmission wires]; Pinero v Rite Aid of N.Y., 294 AD2d 251, 252 [2002], affd 99 NY2d 541 [2002] [no duty to warn of presence of wagon in store aisle, since “the condition is a warning in itself’]; Rosen v New York Zoologi