MORGAN v. TJX COMPANIES INC (2007)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated March 17, 2006, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

 A landowner has a duty to maintain its premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).   However, it has no duty to protect or warn against an open and obvious condition which is not inherently dangerous as a matter of law (see Fitzgerald v. Sears, Roebuck & Co., 17 A.D.3d 522, 793 N.Y.S.2d 164;  Orlando v. Audax Constr. Corp., 14 A.D.3d 500, 788 N.Y.S.2d 173;  Capozzi v. Huhne, 14 A.D.3d 474, 788 N.Y.S.2d 152;  Jang Hee Lee v. Sung Whun Oh, 3 A.D.3d 473, 771 N.Y.S.2d 134;  Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).   The defendant established, prima facie, its entitlement to judgment as a matter of law by demonstrating that the display racks with which the plaintiff's shopping cart collided were open and obvious, known to her, and not inherently dangerous (see Mastellone v. City of New York, 29 A.D.3d 540, 813 N.Y.S.2d 669;  Lamia v. Federated Dept. Stores, 263 A.D.2d 498, 692 N.Y.S.2d 738;  Weiner v. Saks Fifth Ave., 266 A.D.2d 390, 698 N.Y.S.2d 330;  Sewer v. Fat Albert's Warehouse, 235 A.D.2d 414, 652 N.Y.S.2d 102).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.