In this action, the plaintiff allegedly sustained injuries at the defendant's supermarket while performing work for his employer (Pepsi). At the time of the incident, the plaintiff (a delivery driver) was allegedly retrieving dunnage (empty pallets and shells). The dunnage, which belonged to Pepsi, was located behind the supermarket, about 10-15 feet away from the loading dock, off the walkway, and in a grassy area covered in snow. The grassy area also had a slight incline. The plaintiff alleges that the paved area behind the supermarket had been plowed by the time he arrived, but that the snowy, grassy area with the dunnage had not been cleared of snow. The plaintiff allegedly attempted to carefully walk across the slippery, grassy area that day to retrieve the dunnage, however, he slipped in the grassy area while retrieving some of the dunnage. The plaintiff did not complain to the supermarket about the alleged defect so that it could remove the snow for him. He also did not attempt to remove the snow himself.

Now, on the defendant's motion seeking summary judgment, the defendant contends that the complaint should be summarily dismissed, without a trial. The crux of the argument made by defense counsel is that the defendant did not have a duty to protect or warn of the allegedly dangerous condition because it was open, obvious, and not inherently dangerous; and that the defendant maintained its premises in a reasonably safe condition.

"To prevail on a motion for summary judgment, the defendant [landowner] is required to [*2]establish that its property had been maintained in a reasonably safe condition, and that it did not create a dangerous condition that caused the plaintiff's fall or have actual or constructive notice of that condition" (Catman v Back Water Grille LLC, 225 AD3d 966, 967 [3d Dept 2024] [internal quotation marks and citations omitted]). "The fact that a dangerous condition is open and obvious does not relieve a defendant of all duty to maintain his or her premises in a reasonably safe condition" (Mister v Mister, 188 AD3d 1334, 1334 [3d Dept 2020] [internal quotation marks, brackets, and citations omitted]). "However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one's senses" (Catman, 225 AD3d at 967 [internal quotation marks and citations omitted]).

As this is a summary judgment motion, the evidence must be viewed in the light most favorable to the plaintiff, as the non-moving party (see Smero v City of Saratoga Springs, 160 AD3d 1169, 1170 [3d Dept 2018]). In addition, summary judgment is a drastic remedy, and the motion must be denied if any doubt exists as to whether a material factual issue exists or where the issue is even arguable (see id.; Hierro v Bliss Co., 145 AD2d 731, 732 [3d Dept 1988]).

Here, the evidence submitted by the parties reveals that the alleged defect was open and obvious. The plaintiff had walked across the grassy area on numerous prior occasions. He was aware of the slight incline and observed the snow on the day in question. In fact, he testified that he used his training and walked in a careful manner while attempting to remove the dunnage. The plaintiff therefore knew about the alleged dangerous condition and did not require any further warning from the defendant.

Notwithstanding, the defendant has failed to establish as a matter of law that the defect was not inherently dangerous. Viewing the evidence in the light most favorable to the plaintiff, the evidence indicates that the plaintiff had to walk across snow and slippery grass to perform his job duties (retrieve the dunnage); that the dunnage was usually located in the same grassy area, even during the wintertime; that the pathway across the grassy area to the dunnage was not cleared of snow or slippery conditions; and that the plaintiff could not have taken an alternative, safer pathway to retrieve the dunnage. Moreover, although the plaintiff's co-workers allegedly placed the dunnage in the grassy area, the evidence (again when viewed in the light most favorable to the plaintiff) indicates that the defendant either designated the specific area for the dunnage or, alternatively, had sufficient notice of the alleged defect based on the prior complaints made by another driver and the length of time that it persisted.

Based on these circumstances, issues of fact exist as to the dangerousness of the condition and whether the defendant maintained the premises in a reasonably safe condition (see CPLR 3212; Greblewski v Strong Health MCO, LLC, 161 AD3d 1336, 1336 [3d Dept 2018] ["Whether a dangerous condition exists is generally a question for the jury"]; see also Lapinsky v Extell Dev. Co., 202 AD3d 478, 479-480 [1st Dept 2022]; Venezia v LTS 711 11th Ave., 201 AD3d 493, 493-496 [1st Dept 2022]; Aberger v Camp Loyaltown, Inc., 193 AD3d 195, 196-202 [1st Dept 2021]; Jankite v Scoresby Hose Co., 119 AD3d 1189, 1189-1191 [3d Dept 2014]; Jones v Shamrock of Ithaca, Inc., 78 AD3d 1299, 1299-1300 [3d Dept 2010]).^[FN1]

In addition, this case is factually distinct from those cases cited by the defendant, which summarily dismissed the complaints where the plaintiffs slipped on or tripped over conditions inherent to the nature of the property (see e.g. Groom v Village of Sea Cliff, 50 AD3d 1094 [2d Dept 2008]; Mazzola v Mazzola, 16 AD3d 629 [2d Dept 2005]). Unlike in those cases, the record in this case contains evidence that the plaintiff and others were required to transverse the snowy, grassy area in the wintertime on a regular basis as part of their work duties.

The defendant also misplaces reliance on Scheffield v Vestal Parkway Plaza, LLC, 139 AD3d 1161 (3d Dept 2016). There, the plaintiff alleged that a grassy slope constituted a dangerous condition that posed a hazard to Verizon employees seeking to access an easement parcel. That case involved an easement for ingress and egress over a much larger area, and the evidence established that the injured Verizon worker could have taken an alternative, safer pathway to travel across the land. In addition, there was no evidence that the Verizon employees, other than the plaintiff, ever attempted to use the steeper section of the slope or that the landowner had any reason to anticipate that they might do so. Here, in contrast, the dunnage was stored near the loading dock; the plaintiff allegedly had to exercise extreme care to perform the work; the defendant allegedly created the defect with its policy; the plaintiff's co-worker allegedly complained to the defendant's mangers on prior occasions about having to work in the ice and snow; and the plaintiff allegedly did not have an alternative, safer manner to retrieve the dunnage.

In addition, this case is distinguishable from Torres v Binghamton Giant Mkts., Inc., 9 Misc 3d 39 (Appellate Term, 1st Dept 2005), where the plaintiff (employed by Keystone Coca-Cola) was injured while removing soda from a storage area at a supermarket. There, the alleged defect concerned the "methods and means" of the plaintiff's work (e.g., the height of stacked cases), and the plaintiff's employer was exclusively responsible for the plaintiff's performance of such tasks. Here, in contrast, the alleged defect concerns slippery conditions created by snow and an incline, and the defendant has not submitted any evidence to establish that the plaintiff and his employer were exclusively responsible for clearing the snow.

The Court has considered the parties' remaining contentions and finds that they are either lacking in merit or academic in light of this decision.

It is therefore,

ORDERED that the defendant's motion seeking summary judgment dismissing the complaint is DENIED; and

IT IS FURTHER ORDERED that a court settlement conference will be held on March 25, 2026, at 10:00 a.m., IN PERSON at the courthouse, with the plaintiff present and the adjuster available by telephone.

This shall constitute the Decision & Order of the Court. No costs are awarded to any party. The Court is hereby uploading the original into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.