I fell in the parking lot of a bagel store that I frequent. A piece of chain-link fence was sticking out in the parking lot. I had walked past the condition many times without falling. Can I still make a claim against the parking-lot owner for my injuries?
The short answer is that a prior awareness of the condition does not automatically prevent a claim. A New York trip and fall case however, turns on the particular facts: whether the condition was dangerous, whether the owner created it or had notice of it, whether there was a reasonable opportunity to repair or safeguard against it.
A property owner or possessor must use reasonable care to keep premises reasonably safe for people whose presence is reasonably foreseeable. Basso v. Miller, 40 N.Y.2d 233, 241 (1976). That is a fact-specific standard. The question is not simply whether a person fell; it is whether the condition and the surrounding circumstances created a reasonably foreseeable risk of injury.
Was the Protruding Fence a Dangerous Condition?
The size of the protruding fence matters, but size alone does not decide the case. New York courts recognize that a physically small defect can still be actionable when its appearance, location, surrounding conditions, or other characteristics make it difficult to see or unsafe to traverse. Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015). A jagged edge, rough or irregular surface, poor lighting, nearby defects, or a place where pedestrians are naturally distracted may all be relevant.
On the other hand, a property owner may argue that a condition is too trivial to be legally actionable. The trivial-defect analysis considers the width, depth, elevation, irregularity, and appearance of the condition, along with the time, place, and circumstances of the accident. Hutchinson. Id.; Trincere v. County of Suffolk, 90 N.Y.2d 976, 977 (1997). There is no fixed measurement that automatically makes a defect harmless or dangerous. A broken fence piece less than one-half inch, for example, might support a trivial-defect argument, but the court must still examine the whole setting rather than rely only on a measurement.
The owner may also contend that the protruding fence was open and obvious. A condition may be open and obvious when it could not reasonably be overlooked by a person using ordinary senses. Tagle v. Jakob, 97 N.Y.2d 165 (2001). Yet a condition can be technically visible without being open and obvious as a matter of law. Its location, lighting, color, placement, surrounding pedestrian traffic, and whether it blends into the surface may make it easy to miss. See Powers v. 31 E 31 LLC, 123 A.D.3d 421, 422 (1st Dep’t 2014).
Open and Obvious Does Not End Every Claim
Under New York law, a landowner has no duty to warn of a condition that is open and obvious; it does not necessarily eliminate the landowner’s separate duty to maintain the premises in a reasonably safe condition. Even though a defendant landowner may argue a defect is obvious, the court and jury may not agree. Sweeney v. Riverbay Corp., 76 A.D.3d 847, 849 (1st Dep’t 2010). In other words, a defendant may argue that no additional warning was required if the protruding fence was readily observable, while a plaintiff may still argue that allowing the physical condition to remain in the parking lot was negligent.
The issue is often not decided by a simple label. A court may consider whether the fence was plainly visible to anyone walking through the area or whether its particular location and appearance made it difficult to identify as hazardous. For example, a thin piece of chain-link fencing may be hard to perceive if it extends into a walking path, blends into pavement or shadows, or is encountered where a pedestrian’s attention is reasonably directed elsewhere.
But New York follows comparative negligence. When a landowner’s duty to maintain reasonably safe premises has been breached, the “open and obvious” nature of the condition may bear on comparative fault rather than negate liability. Saretsky v. 85 Kenmare Realty Corp., 85 A.D.3d 89, 93 (1st Dep’t 2011).
Prior Knowledge and Momentary Forgetfulness
Walking past a condition before the accident does not automatically mean that an injured person has no claim. The owner may argue that prior familiarity proves the person knew of the condition, should have seen it, and could have avoided it. Those facts can be important evidence in the defense case.
The fact that an injured person knew about, saw, or could have avoided a hazard may be relevant to that person’s own share of fault; it does not necessarily bar recovery if the property owner was also negligent. In Flynn v City of New York, 103 AD2d 98, 478 NYS2d 666 (2d Dept. 1984), the court addressed the effect of a plaintiff’s conduct under comparative negligence principles.
There is no separate jury instruction labeled “momentary forgetfulness.” Still, the facts may support an argument that a pedestrian had previously encountered a condition but did not have it in mind at the moment of the accident.
There are two arguments. One for the landowner and another for the pedestrian. The pedestrian would argue as people generally walk upright, look ahead, and navigate ordinary parking lots without being expected to scan continuously for every previously observed defect. The opposing argument is that the pedestrian’s familiarity with the condition made it avoidable. A jury may weigh both versions when apportioning fault.
Notice and the Parking-Lot Owner’s Opportunity to Act
To establish negligence, the injured person generally must show that the owner created the unsafe condition or had actual or constructive notice of it and had enough time to correct it, provide safeguards, or give a reasonable warning. Arzola v. Boston Props. Ltd. Partnership, 63 A.D.3d 655, 656 (2d Dep’t 2009). Actual notice means the owner knew about the condition. Constructive notice generally requires proof that the condition was visible and apparent and existed for a sufficient period for the owner, using reasonable care, to discover and address it. Harrison v. N.Y.C. Transit Auth., 113 A.D.3d 472, 473 (1st Dep’t 2014).
If the broken fence had been protruding for a long time, photographs, witness testimony, maintenance records, prior complaints, or evidence that employees regularly passed through the area may be relevant. See McKee v. State, 75 A.D.3d 893, 895 (3d Dep’t 2010). If the owner created the condition or was responsible for the fence’s installation or maintenance, that may also affect the notice analysis. Conversely, the owner may contend that the condition appeared recently, was not visible on inspection, or was not dangerous.
Bottom Line
Your prior awareness of the broken fence does not automatically defeat a parking-lot injury claim. The case may depend on whether the protrusion was dangerous rather than trivial, whether it was genuinely open and obvious in its actual setting, whether the owner created it or had notice and a reasonable opportunity to act.
The injured person may have a meaningful legal argument, and the parking-lot owner may have defenses. Because these cases depend heavily on photographs, notice evidence, and the circumstances of the fall, the outcome cannot be predicted from the size of the defect or prior knowledge alone.
By James Santner, Esq.
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