Was City of Long Beach Liable For Resulting Injury to Cyclist?
Zoe Papetti sued the City of Long Beach to recover damages for personal injuries she allegedly sustained when she fell while riding her bicycle after yellow caution tape became wrapped around the bicycle’s handlebars. The City moved for summary judgment dismissing the complaint. Supreme Court denied the motion. The City appealed.
There is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident. In other words, whether a hazard is open and obvious cannot be divorced from the surrounding circumstances. But a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted. Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question.
Here, the City failed to establish, prima facie, that the condition was open and obvious or inherently dangerous. Notably, photographs of the accident location, which were taken immediately after the accident and were submitted by the City in support of its motion, depicted an orange traffic barrel in the street near the curbline where the accident occurred. Furthermore, the photographs depicted several feet of slack yellow caution tape tied to the traffic barrel. Thus, the photographs corroborated Papetti’s deposition testimony, which was also submitted by the City in support of its motion, in substance, that while the traffic barrel was visible to Papetti, the caution tape was not visible prior to the accident.
The City failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint.