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WESTBROOK v. WR ACTIVITIES

5 A.D.3d 69 (2004)

773 N.Y.S.2d 38

RUTH WESTBROOK, Appellant, v. WR ACTIVITIES-CABRERA MARKETS et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 9, 2004.

Attorney(s) appearing for the Case

DiJoseph & Portegello, P.C. and Law Office of Avi D. Caspi, PLLC (Arnold E. DiJoseph III, of counsel), for appellant.

Downing & Peck, P.C. (Paul K. Ryan of counsel), for respondents.

ELLERIN and GONZALEZ, JJ., concur with SAXE, J.; BUCKLEY, P.J., and MARLOW, J., concur in a separate opinion by BUCKLEY, P.J.

OPINION OF THE COURT

SAXE, J.

This appeal gives us the opportunity to investigate and reexamine the proposition that a property owner will not be liable in tort under a theory of common-law negligence when a complained-of dangerous condition was open and obvious.

Plaintiff Ruth Westbrook states that on May 29, 1998, as a result of defendant's negligence, she tripped and fell over a cardboard box that had been left in an aisle at a Met Foods supermarket...

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