Firm News

Supreme Court Dutchess County Grants Motion for Summary Judgment by Schwab Gasparini in Favor of Defendants in Premises Liability Action

In Dagnino v. Key Bank, et al., the plaintiff sued for personal injuries arising from her trip and fall on a sidewalk. Plaintiff testified that she successfully stepped up the curb just moments before the accident, but tripped when she attempted to step down from the curb. Plaintiff retained an engineering expert witness who opined that the curb constituted an "optical confusion," a condition that creates the illusion of a flat surface, visually obscuring any steps. We argued that the single step riser constituted an "open and obvious" condition that was readily observable by the reasonable use of one's senses and not inherently dangerous. The Supreme Court granted defendants' motions for summary judgment, dismissing the Complaint, holding that the single step riser was an open and obvious condition, and that plaintiff's argument that the curb constituted an "optical confusion" did not create an issue of fact. The plaintiff appealed.

On appeal, the Second Department affirmed the order of the Supreme Court Dutchess County. The Appellate Division held that defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the condition of the curb was open and obvious and not inherently dangerous. The Appellate Division found that the plaintiff failed to raise a triable issue of fact as photographs of the curb, unlike the sidewalk, did not have lines delineating slabs, and the plaintiff's engineering expert failed to identify the engineering standards or practices upon which he relied in asserting that the curb was a dangerous and defective condition.

-Jay S. Campbell, Louis U. Gasparini

Wed Jan 25 2023, 12:00am