THE OPEN AND OBVIOUS DOCTRINE AND PREMISES LIABILITY
DEFENDING THE 90/180 DAY CLAIM IN A NEW YORK AUTO CASE
AN OVERVIEW OF NEW YORK STATE LABOR LAW
THE OPEN AND OBVIOUS DOCTRINE AND PREMISES LIABILITY
Prior to 1976 the doctrine of “open and obvious” as applied to the defense of premise liability cases in New York State was oft used and typically successful. To obtain dismissal a defendant premises owner was required only to demonstrate that the complained of condition was not hidden or disguised, such that a trap like condition was created, but rather was visible to an ordinary individual reasonably employing his senses. The landmark decision of Basso v. Miller, 40 NY2d 233 (1976) however, effected a sea change in premises liability for New York defendants..
Before Basso, the status of the plaintiff on the property defined the duty of care owed by the landowner. Thus, for example, under the pre- Basso formula, a landowner owed a far greater duty of care to a plaintiff lawfully on his property than a mere trespasser. The increasingly difficult assignment of precise categories to the status of plaintiffs however, led the New York State Court of Appeals to abandon that particular endeavor completely and establish a single duty of care for landowners regardless of the status of the plaintiff. Basso held that a landowner is charged with maintaining his property in a reasonably safe condition in view of all circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk of harm. While the status of the plaintiff was an element to consider in assessing foreseeability, it was no longer relevant in defining the duty owed by the landowner. The Court in Basso went on to specifically hold that negligence principles such as comparative negligence and assumption of risk apply to premises cases..
Following Basso, many in the Bar assumed that the “open and obvious” doctrine was now dead and indeed, many in the Bar continue to practice under this misapprehension. The prevailing thought is that the plaintiff’s failure to recognize and or appreciate an open and obvious condition does not now bar recovery but simply acts to reduce any award based on the plaintiff’s own comparative negligence. This view however, wrongly circumscribes the applicability of the “open and obvious” doctrine.
As the Appellate Division in Cupo v. Karfunkel, 1 A.D.3d 48 (2d Dept 2003) observed, where it is demonstrated only that the complained of condition is open and obvious dismissal is inappropriate and such an argument is relevant only to the comparative negligence of the plaintiff. If however, it is demonstrated that the complained of condition is both open and obvious and, as a matter of law, not inherently dangerous a Court must dismiss the claim. Thus, the “open and obvious” doctrine survives as a vehicle for dismissal with the caveat that in addition to demonstrating that the complained of condition was open and obvious, a defendant must also now demonstrate that the condition was not inherently dangerous.
Application of the doctrine is demonstrated in Sclafani v. Washington Mutual, 36 AD3d 682 (2nd Dept., 2007) successfully argued by this firm. In Sclafani, plaintiff tripped and fell over a concrete parking stop in the lot servicing a Washington Mutual Bank suffering severe personal injuries. Even though the parking stop was set at an angle both the Trial and Appellate Court found that the white concrete stop on the black asphalt was open and obvious, as it was readily observable by those employing the reasonable use of their senses and, as a matter of law, not inherently dangerous. Upon satisfying this two prong test, dismissal of plaintiff’s entire claim followed. The lower court’s dismissal was affirmed on appeal.
In the context of a large box store the “open and obvious” doctrine finds expression in Maravalli v. Home Depot USA, Inc., 266 A.D.2d 437 (2d Dept 1999) The plaintiff brought the action to recover damages for personal injuries allegedly sustained when he fell over a sink vanity lying in the aisle of the Home Depot store. While the appellate court acknowledged Home Depot’s duty to maintain its store in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries, the Court went on to hold that the vanity was open and obvious to someone employing the reasonable use of their senses and that the vanity was not an inherently dangerous condition. Based on this twin finding, the “open and obvious” doctrine mandated dismissal. The Court went on to observe that where the condition is indeed open and obvious there is no duty on the part of owner to warn of same.
In more traditional commercial settings the “open and obvious” doctrine has been applied to such diverse objects as benches, merchandise racks and dressing room hooks. The key component in all these decisions is the demonstration that the alleged offending article was not merely open and obvious but not inherently dangerous as well. Thus, during discovery and most particularly depositions, counsel needs to establish not only that the alleged offending article was readily observable but innocuous as well in order to successfully argue the “open and obvious” defense.
While the “open and obvious” doctrine has certainly become more difficult to invoke with the additional mandate of demonstrating that the alleged offending condition was not inherently dangerous the doctrine is still viable and provides a complete defense to a landowner in the appropriate setting. For every defense counsel faced with a premise liability claim, it remains an invaluable tool to be closely considered at the inception of the litigation since its successful application provides complete immunity to the landowner client.
DEFENDING THE 90/180 DAY CLAIM IN A NEW YORK AUTO CASE
Few issues in New York have generated more conflicting case law than whether
a particular plaintiff has satisfied the "serious injury" threshold
requirement in order to maintain a personal injury action under New York's
No-Fault Automobile Statute. In this article we examine recent issues
concerning the so-called "90/180 Rule" portion of that statute.
By way of background, Section 5102(d) of the Insurance Law of the State of
New York sets forth the definition of "serious injury" and provides as
(d) "Serious injury" means a personal injury which results in death;
dismemberment; significant disfigurement; a fracture; loss of a fetus;
permanent loss of use of a body organ, member, function or system; permanent
consequential limitation of use of a body organ or member; significant
limitation of use of a body function or system; or a medically determined
injury or impairment of a non-permanent nature which prevents the injured
person from performing substantially all of the material acts which
constitute such person's usual and customary daily activities for not less
than ninety days during the one hundred eighty days immediately following
the occurrence of the injury or impairment.
In general, threshold cases fall into one of three separate categories. The
first involves fractures which generally have not lent themselves to
extensive appellate review for the simple reason that any type of fracture,
no matter how minor, generally meets the threshold requirement. The second
category involves soft tissue claims typically involving herniated and/or
bulging discs which allegedly cause permanent consequential limitation. The
third category involves the so-called 90/180 Rule wherein plaintiffs alleged
a substantial disability for 90 of the first 180 days following the
In the past, plaintiffs felt confident meeting threshold requirements by
merely submitting a medical report diagnosing a herniated disc. The Court of
Appeals however, in Toure v. Avis Rent A Car Sys. 98 N.Y.2d 345 (2002), held
such sparse submissions standing alone were insufficient to satisfy the
threshold statute and further enumerated a "gap in treatment" restriction
which required plaintiffs to explain by medical affirmation any significant
cessation in treatment. A spate of cases followed which dismissed herniated
disc cases because plaintiffs failed to adequately reconcile claims of
serious injury with extended "gaps" in their medical treatment. In order to
circumvent this issue, plaintiffs began to rely more heavily on the 90/180
In defending a claim brought pursuant to the 90/180 Rule, a major impediment
to the defense is the timing of the litigation and the natural course of the
discovery process. In a typical automobile case, the action itself will not
be commenced until several months (at the earliest) after the accident and
defendant's independent medical examinations will not take place until after
the deposition of the plaintiff and the retrieval of the plaintiff's
relevant medical records. As such, the medical examination is normally not
held until at least a year and sometimes several years after the accident.
While the examining physician can certainly comment on the condition of the
plaintiff at the time of the examination and opine that plaintiff is not
suffering from a threshold injury at that time, the defense physician is
often unable to comment on plaintiff's condition within the first 180 days
following the accident except by history. Bearing in mind that the
proponent of a summary judgment motion has the initial burden of proof,
plaintiff's counsel typically seizes upon the unavoidable "failure" of the
examining physician to address the 90/180 day claim. Plaintiff argues that
defendant has failed to satisfy its initial burden of proof due to
defendants' examining doctor's inability to address plaintiff's condition
during the first 180 days post accident, and accordingly, the burden of
defending the motion never shifts to plaintiff.
The First Department case of Hoisington v. Santos, 48 A.D.3d 333 (First
Dept. 2008) is typical in this regard. There, plaintiff was examined more
than three years post accident and defendant submitted the report of its
examining doctor to establish that plaintiff was not disabled as of the time
of the examination. Instead of relying on a permanent limitation, though,
plaintiff relied on the 90/180 claim and survived the dismissal motion. In
deciding the motion against defendant, the First Department held:
The report of defendant's expert orthopedist addresses Plaintiffs condition
at the time of examination, more than three years after the accident, and
therefore is insufficient to establish that plaintiff was not incapacitated
from performing substantially all of her customary and daily activities for
90 of the 180 days immediately following the accident.
In defending against the 90/180 claim than, defense counsel must be mindful
of the weakness inherent in all defense examinations held years after the
accident. It has been the experience of this office that the key to
defeating the 90/180 claim often rests with the issue of causation.
Specifically, evidence that plaintiff suffered a prior injury to the same
body part or that the alleged injury is degenerative as opposed to traumatic
in nature is generally sufficient to create a prima facie case for
dismissal. Such evidence forces plaintiff to respond with proof in
admissible form that not only was he or she significantly impaired for 90
out of the first 180 days following the accident but also that such
impairment was the result of an injury actually sustained in the subject
accident. The latter proof can only be submitted through appropriate
By way of example, let us assume plaintiff is the subject of a rear end
collision in 2000. A personal injury lawsuit is commenced in 2001;
depositions are held in 2002; and her defense medical examinations are held
in 2003. Let us further assume that plaintiff's Bill of Particulars alleges
a herniated cervical disc and, among other threshold allegations, a 90/180
claim. At her deposition, plaintiff testifies that for the first three
months following her accident, she was unable to work or engage in her
customary daily activities due to neck pain and a restricted range of
motion. The defense IME finds no objective disability and said findings are
supported by objective medical tests described in detail in the IME report.
Defendant then moves for summary judgment alleging that plaintiff has not
sustained a serious injury as defined by the threshold law.
While the IME Report certainly addresses the issue of a permanent
limitation, it does not address the 90/180 claim and as such, regardless of
the opposition (or lack thereof) the motion will in all likelihood be denied
because defendant failed to meet its initial burden with regard to the
Now contrast the above scenario with one in which defense counsel at
plaintiff's deposition or through plaintiff's medical records establishes
prior complaints of injury to the neck. Similarly, contrast the above
scenario with one in which the defense IME or defense radiologist opines
based on a review of diagnostic films that plaintiff's injuries are
pre-existing and or degenerative in nature and not the result of the rear
end collision which forms the predicate for the lawsuit. Under either of
these two scenarios, the burden of proof should properly shift to plaintiff
to establish through competent medical evidence that the injury was not
pre-existing and that the injury did, in fact, disable plaintiff for 90 out
to the first 180 days following the accident. Such proof is often
unavailable to plaintiff, particularly where the initial treating physician
diagnosed a sprain or strain only and or where the diagnostic film report is
inconsistent with a traumatic injury.
The case of Eichinger v. Jone Cab Corp., 55 A.D.3d 364 (First Dept. 2008),
is illustrative. There, plaintiff relied on a 90/180 claim in order to
circumvent a 14 month gap in treatment. However, plaintiff's medical proof
in opposition to the threshold motion failed to address the defendant's
radiologist affirmation that the cervical condition "was degenerative in
origin due to desiccation of the discs." Since the defendant through
competent medical evidence established that the claimed injury preexisted
the complained of accident and plaintiff did not successfully rebut the
causation argument the action was dismissed.
In conclusion, defense counsel can successfully defeat a 90/180 claim in a
threshold case if counsel is aware from the inception of the defense that
more than a mere defense IME report will be required. Counsel must be aware
that causation is the touchstone to a successful defense and tailor
AN OVERVIEW OF NEW YORK STATE LABOR LAW
The construction industry has long been one of the major engines that drive New York State’s economy. The skylines of the State’s major cities are routinely erased and redrawn to address the constantly shifting needs of its business communities and residents. Predictably, this almost manic construction activity has created a need to address the rights of workers injured at construction sites. The Legislature has responded with the passage of specific statutes defining and or creating rights of recovery for the injured construction worker.
The construction statutes address the reality in New York that a direct cause of action for personal injury cannot be brought against an employer by an employee as long as the employer maintains worker’s compensation insurance. In a construction setting this forecloses injured workers from suing their employers directly despite the fact that in most cases it is the employer’s failure to properly supervise the manner and method of the work performed that is the actual cause of plaintiff’s injury. Rather then consign injured workers to compensation benefits only, the Legislature through the operation of Labor Law 200, 241(6) and 240 allows workers to bring suit against property owners and or their agents, typically general contractors, for injuries sustained at construction sites. The following is a brief overview of these statutes and their operation.
Labor Law 200 is a codification of common law negligence principles. To hold an owner or general contractor liable under the statute plaintiff must demonstrate that: 1) a dangerous condition which proximately caused plaintiff’s injury existed; 2) that the owner/general contractor knew or should have known of the condition with sufficient time to cure same and 3) that the owner/general contractor exercised sufficient control over the worksite and or the manner and method of plaintiff’s work that it would be reasonable to conclude that the owner/general contractor was in a position to remedy the dangerous condition. Courts have consistently held that general supervisory capacity at a construction site such as ensuring plans and specifications are being followed, coordinating trades on the job, enforcing time schedules and general safety inspections are insufficient predicates to visit Labor Law 200 liability on an owner/general contractor. Typically, unless the owner/general contractor directs the plaintiff in the particulars of how his work is to be performed as opposed to more general instructions to a foreman that the work is to be commenced/completed, Labor Law 200 liability will not lie.
Labor Law 200 is a negligence statute and therefore plaintiff’s recovery will be proportionally diminished by his own negligent conduct. Additionally, since by statute, a negligent party cannot be indemnified for its own negligence in a construction setting, an owner/general contractor found liable under Labor Law 200 cannot pass the loss to another party by operation of common law or contract. Although routinely pled in construction accident cases, Labor Law 200 is rarely a viable vehicle of recovery for plaintiffs. Owners/general contractors typically do not exercise
the degree of control necessary at the jobsite to be charged under the statute.
Labor Law 241(6) is a hybrid statute which imposes vicarious liability on an owner or general contractor for the negligent acts of another, normally plaintiff’s employer, which proximately cause plaintiff’s injury. Although it is a negligence statute plaintiff is not required to demonstrate negligent conduct on the part of the owner/general contractor nor is plaintiff required to demonstrate notice of the dangerous condition or activity to the owner/general contractor.
In order to prevail, plaintiff must plead and prove a violation of a specific, self executing New York Code Rules and Regulation section. NYCRR contains a myriad of regulations typically found in Chapter 23, referred to as The Industrial Code, which govern work site safety. Plaintiff in his pleadings must identify which code provisions were violated which caused plaintiff’s injury. Further, these code provisions must be specific and self executing such that their proper application may be divined from the face of the regulation alone. Thus, a regulation that merely provides that “proper safety devices” must be employed would be too general and therefore insufficient to base a Labor Law 241(6) action on while a regulation that specifically named and described the device to be employed would support a cause of action. As one might expect Labor Law 241(6) has generated significant reported decisions identifying those regulations which are specific and self executing and those that are not. Legal research is typically required to determine the viability of any one regulation cited by plaintiff. Most often plaintiffs will employ a “shotgun” approach citing as many regulations as feasible to keep all possible recovery options open.
If a self executing regulation has been violated it is some evidence of negligence which the jury must consider. Since 241(6) is a negligence statute the negligence of the plaintiff will proportionally diminish his recovery. As set forth above an owner/general contractor found liable under Labor Law 241(6) is answering for the conduct of another. Such a finding does not equate to a finding that the owner/general contractor was itself negligent and therefore that loss can be passed through to the responsible/negligent party through contract or in certain instances by operation of common law indemnity principles. Labor Law 241(6) is typically invoked in cases where plaintiffs are injured in trip and fall accidents either at their actual work site or in passageways/hallways leading to the worksite. Labor Law defendants however need to be cognizant that while debris and other tripping hazards will invoke 241(6) liability, instrumentalities that are endemic to the work being performed, such as mesh wire laid for poured concrete, will not trigger liability since it is neither debris nor a tripping hazard.
Labor Law 240 is by far the most controversial and litigated statute which creates liability for an owner/general contractor in a construction setting. Its permutations and nuances fill thousands and thousands of pages of reported decisions. What follows is the briefest of overviews.
The statute was passed in recognition of and in response to the unique dangers presented workers employed in the construction of high rise buildings. It provides that workers engaged in various enumerated construction activities including erection, demolition, repairing, painting and cleaning of buildings and structures must be provided proper protection such as scaffolds, ladders, hoists and other like devices to safely carry out their work. The responsibility of ensuring that such devices are provided and properly used at a construction site is delegated to owners of the property and their agents, typically general contractors. While the wording of the statute appears simple and straightforward its application has been anything but.
Labor Law 240 is not a negligence statute. It has been interpreted to impose absolute liability on an owner or its agent if the statute is violated. Plaintiff’s own negligent conduct is immaterial to the inquiry and will not proportionally reduce an award unless it can be demonstrated that the conduct of the plaintiff was the sole proximate cause of the accident in which case the statute will not have been violated and no recovery will be had. In order to recover under the statute plaintiff must only demonstrate that he was not furnished with proper protection at the job site or that the protection furnished failed to protect him from injury. Once demonstrated, if the violation of the statute is found to be a proximate cause of the injury plaintiff is entitled to a full recovery from the owner/agent. As stated above the statute is not a negligence statute and therefore notice of the condition and control of the site are not elements of plaintiff’s proof.
The statute is often referred to as “the scaffold law” since it is the first device listed in the statute and is representative of the type of device to which the statute speaks. Courts have interpreted Labor Law 240 to apply to those injuries suffered as the result of the application of gravity such as falls from a height or workers being struck by falling objects. Thus, workers who fall from an elevated work site because they have not been furnished with a scaffold or ladder from which to work or because the furnished safety device malfunctioned or failed are classic Labor Law 240 plaintiffs. Similarly plaintiffs injured by falling debris or tools from an elevated worksite are entitled to recovery under the statute.
Because the proof required for recovery, injury as the result of a gravity related accident, is relatively simple liability issues lend themselves to summary judgment disposition. Defenses to 240 liability include “sole proximate cause” mentioned above as well as the “recalcitrant worker defense”, the specifics of which are so exacting it is rarely successfully interposed. Issues normally raised in Labor Law 240 litigation include whether the plaintiff was engaged in activity covered by the statute, whether the accident occurred as the result of a height differential such that gravity was invoked and whether the accident was of the type that the statute was passed to prevent. It is important to understand in evaluating 240 cases that Courts are charged with reading the statute as broadly as possible to provide recovery for injured workers. As such all legal questions are typically resolved in the plaintiff’s favor.
An owner or contractor found liable under Labor Law 240 is not adjudged to be negligent. Thus liability can be passed by contract or in limited circumstances by operation of common law to another party. Typically this is the only “defense” available to an owner/general contractor in a Labor Law 240 case. Since a plaintiff’s recovery is not diminished by his own negligent conduct Labor Law 240 actions are most attractive to the plaintiff’s bar and typically result in the highest awards/settlements.