Why does open and obvious defense in a slip and fall only relief the owner of warning but doesn't relief the duty to keep safe?

The following is a generalized discussion of the issue(s) you raise. A more specific analysis would require a fact specific presentation, which your question does not provide. In New York, a property owner/possessor is required to maintain/repair their property in a reasonably safe condition. If someone is injured due to the failure to maintain the property in a reasonably safe condition, then the property owner can be held liable. At the same time, every person is responsible to act in a reasonable manner for their own safety. The failure to do so can result in the injured party, and not another, being held responsible for their own accident/injury. New York is a pure "comparative fault" State- meaning cases will not be dismissed solely because a defective or dangerous condition was "open and obvious" (there may be exceptions to that rule but this is not the forum to give a class on all aspects of property liability), but that fact will be left to a jury to decide who bears what percentage of fault for the happening of the accident given that circumstance - the injured party or the property owner. That is why you can get different results in different cases. (the jury can find the injured party 100% at fault; the property owner 100% at fault, or distribute the percentage such as the 50-50 you noted). Your question implies that it is okay for a property owner to knowingly allow a condition that is dangerous to the safety of those coming onto that property to continue to remain so long as it is "open and obvious", which is not the intent of the law. Again, what is considered "open and obvious" and to what degree the "open and obvious" nature of the condition played in the happening of the accident, is depended on the facts and circumstances of each case. You need to talk with a lawyer in your area about specifics to get a legal analysis that applies to your personal situation.

An owner has a responsibility under New York law to correct unreasonably dangerous conditions on their property. The law recognizes that a customer or visitor may not see or recognize the danger presented. The costs of an injury is often borne by society and taxpayers as a whole, as in the case where the party injured has their medical bills paid by Medicaid. As an example, a large oil spill may be open and obvious in a gas station parking lot. The customer may be looking away from the ground as he or she walks, perhaps looking for traffic or watching another person. If the owner of the gas station knows of the oil spill and fails to clean it up, it is foreseeable to the owner that someone will fall and be injured. The law holds the owner responsible for negligence. The law in New York does reduce the injured party's recovery for their negligence in not recognizing the danger through the defense of culpable conduct. Thus, if the jury finds both parties negligent and assigns 40% of the fault to the injured party, that party will only recover 60% of their damages, such as medical bills and lost wages. Since the owner may have seen the dangerous condition several times and failed to remedy the dangerous condition, the jury may find the owner to be more responsible than a party who may have had only one opportunity to recognize the dangerous condition. If the owner is has insurance the insurance company will retain a lawyer to defend the owner and pay any resulting settlement or verdict.

Another question to ask: Do we want property owners to allow dangerous conditions on their property to remain and not be responsible simply because the condition may be visible? If your child got hurt in a school, would it be acceptable that the school says "the condition is visible therefore it doesn't matter that it's dangerous"? New York law permits a jury to consider the relative responsibilities of the parties involved so as to arrive at a more equitable result given the circumstances.

I have dealt with this issue on several occassions. There was a time when it was thought that if a dangerous condition was open and obvious that the plaintiff could not recover from the land owner. The theory being that if the condition was open and obvious then the plaintiff knew about it and could not fault the premises owner for it. Cases however presented themselves to the court that made this rule unjust. For instance, a large rock is left on the sidewalk. There is no doubt that it was open and obvious, but was it reasonable to leave it there when the landowner had reason to know that bike riders used the sidewalk? There are also cases that involve boxes being left in the aisle of retail stores. They are open and obvious but they nevertheless may create a dangerous condition without any good reason for there being there. The Court thus, decided that while a landowner does not have a duty warn of an open and obvious condition, they still have a duty to maintain the premises in a reasonably safe condition. Obviously, its alot harder to prove a premises is not safe where the dangerous condition is open and obvious, but its not impossible as the facts of the above cases suggest.

I agree with the other attorneys