Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/30

 Pursuant to the “open and obvious” exception, a manufacturer may not be liable for a failure to warn if the risks were sufficiently obvious to the user without a warning. Andrulonis v. United States, 924 F.2d 1210, 1222 (2d Cir.1991) (“[T]he focus of the ‘obviousness’ inquiry is upon the objective reasonableness of the supplier’s judgment about whether users will perceive the danger…. The danger must be so apparent or so clearly within common knowledge that a user would appreciate the danger to the same extent that a warning would provide.”) (citations omitted).

The open and obvious defense will not apply “when there are aspects of the hazard which are concealed or not reasonably apparent to the user ….” Liriano, 92 N.Y.2d at 241–42, 677 N.Y.S.2d 763, 700 N.E.2d 303; see also Anderson v. Hedstrom Corp., 76 F.Supp.2d 422, 448 (S.D.N.Y.1999) (denying summary judgment motion because as a matter of law the danger of jumping on trampolines was not so obvious that trampoline manufacturer need not have included warnings (1) that risk-reducing cages were available on the market and (2) that users should jump only in the center, with proper ground covering, or with professional supervision or spotter); ''Jiminez v. Dreis & Krump Mfrg. Co.'', 736 F.2d 51, 55 (2d Cir.1984) (finding as a matter of law that it was not obvious that injury would result to operator who had not activated machine at all, even though it was obvious that injury could result to an operator who had activated, either intentionally or accidentally, the machine).

Because of the difficulty in administering this test, the question of whether a danger is open and obvious is usually a jury question unless only one conclusion may be drawn from the established facts. Liriano, 92 N.Y.2d at 241–42, 677 N.Y.S.2d 764, 700 N.E.2d 303 (“The fact-specific nature of the inquiry into whether a particular risk is obvious renders bright-line pronouncements difficult, and in close cases it is easy to disagree about whether a particular risk is obvious. It is hard to set a standard for obviousness that itis [sic] neither under- nor over-inclusive.”).

As discussed above, the Complaint fails to allege that the McDonalds’ products consumed by the plaintiffs were dangerous in any way other than that which was open and obvious to a reasonable consumer. While the plaintiffs have presented the outline of a substantial argument to the contrary in their papers, as discussed supra, their theory is not supported in their Complaint, and thus cannot save Count IV from dismissal. In addition, as also discussed above, the Complaint does not allege with sufficient specificity that the plaintiffs’ consumption of McDonalds’ products was a significant factor in their