First Department Joins With The Other Departments Finding That Open And Obvious "Natural Geographic Phenomena" Are A Defense To Landowner Liability

In Melendez v. City of New York, the plaintiff was injured when she fell into a waterfall in Bronx River Park. The waterfall was considered a "natural feature of the landscape." The plaintiff fell when she slipped on wet rocks on the edge of the waterfall. The First Department found that both the waterfall and the wet rocks were open and obvious and the hazard of kneeling near the waterfall should have been anticipated by the plaintiff.

In affirming the granting of defendant's motion to set aside the jury's verdict on liability, the First Department distinguished this case from its prior holding in Westbrook v. WR Activities-Cabrera Mkts. (5 AD3d 69 [2004]). In Westbrook, the Court had joined with the other Departments in dispensing with the "open and obvious" doctrine as a defense to readily observable conditions such as a carboard box left in a supermarket aisle. Here, however, since the alleged condition was a "natural geographic phenomena," the Court indicated that it was again joining with the other Departments that, post-Westbrook, have held that the open and obvious doctrine is available for such natural conditions as a whirlpool, a ten-foot cliff and a ravine.