Appellate Division, Fourth Department
Open and Obvious Risk
Inference of Cause
Bevan v. Murray, et al.
Appealed from Supreme Court, Monroe County
Background: The plaintiff commenced the action seeking damages for injuries she had sustained when she fell and struck her head on an unfinished deck at the house of the defendants. The Monroe County Supreme Court had dismissed her complaints on the ground that the unfinished deck was an open and obvious risk. The plaintiff appealed.
Ruling: The appellate division reversed. The court noted that there was a lack of evidence with respect to precisely where the accident had occurred as the plaintiff could not remember what had happened prior to falling, nor could the defendant see the accident happen. This lack of evidence did not lead to the inference that the accident had occurred in its entirety at the far side of the unfinished deck, which was where most of the unfinished construction existed. The facts established that the accident may have occurred in another area of the deck where the construction was completed.
Charles A. Hall for the plaintiff-appellant; Lisa G. Berrittella of Trevett Cristo Salzer & Andolina PC for the defendants-respondents Murray; Thomas D. Seaman of Lippman O’Connor for defendant-respondent Weston; Alexander Geiger of Geiger and Rothenberg LLP for the third-party defendant-respondent