Daily Development for Wednesday, January 7, 2004 
by: Patrick A. Randolph, Jr. 
Elmer F. Pierson Professor of Law 
UMKC School of Law 
Of Counsel: Blackwell Sanders Peper Martin 
Kansas City, Missouri 
dirt@umkc.edu 
LANDOWNER LIABILITY; DANGEROUS CONDITION: The 
open and obvious nature of a dangerous condition negates any duty by 
the landowner to warn of such condition, but does not automatically 
negate the more general duty of the landowner to maintain the property 
in a reasonably safe condition. MacDonald v. City of Schenectady, 761 
N.Y.S.2d 752 (A.D. 3 Dept. 2003). 
The case involved a dangerous breach in a sidewalk. The evidence 
showed that plaintiff knew of the danger and had indeed warned others 
of it in the past. The court noted that in several previous cases it held 
that an obviously dangerous condition negates the duty of a landowner to 
maintain his or her property in a reasonably safe condition. 
The court stated that this rule that there was no duty to warn was based 
upon the notion that "the condition is a warning in itself." The court 
concluded, however, that this rationale did not extend to excusing the 
landowner from maintaining the property in safe condition nevertheless. 
To permit the landowner to avoid liability entirely, even when the 
condition is very dangerous, just because it is obvious would be 
inconsistent with the social policy of encouraging landowners to keep 
their property safe. In addition to the policy considerations, there was 
dicta in a decision in the New York Court of Appeals that the high court 
had already determined that a change in the rule was in order. 
Thus, the court explained that it was promulgating a new rule with this 
case. The obvious and open nature of a purportedly dangerous condition 
is insufficient on its own to negate the landowner's duty of care. The 
extent to which the hazardous condition is obvious is simply a factor that 
impacts the foreseeability of an accident and the extent of the injured 
party's comparative negligence. 
Comment: As the editor is not skilled in the arcane policy reasoning 
supporting our current tort system, he is easily confused. The editor also 
puzzles over whether a jury will understand the nice distinctions 
necessary for it to evaluate whether a condition was the "proximate 
cause" of the accident when the injured party was aware of the condition 
but deliberately or negligently failed to protect itself. 
Likely there are conditions that are so dangerous in and of themselves 
that simple knowledge of them is insufficient to insulate the landowner 
from responsibility to those injured. The editor is concerned, however, 
that submitting this complicated question to a jury in every case is not 
likely to identify this special class of conditions, and that a more narrow 
exception to the non-liability rule might be in order. 
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