What is the test for determining whether an open and obvious condition in a motor vehicle accident is an accident?

As expressed in Westbrook v. WR Activities-Cabrera Markets, 5 AD3d 69 (1st Dept. 2004), the issue of whether a condition is open and obvious is generally a jury question and should only be resolved as a matter of law when the facts compel such a conclusion. See, Id. at 72. For a condition to be open and obvious as a matter of law requires that it could not be overlooked by anyone making a reasonable uses of his senses. See, Garrido v. City of New York, 9 AD3d 267, 268 (1st Dept. 2004). Whether the condition is able to be observed does not end the inquiry, since the nature and location of some hazards make them likely to be overlooked or misperceived despite their technical visibility. See, Id.

The issue of comparative negligence is a question of fact proper for the jury's determination.