I agree that there are issues of fact whether the cardboard box over which plaintiff tripped and fell constituted an open and obvious hazard. Among the evidence plaintiff presented in opposition to defendant’s motion for summary judgment to dismiss the complaint was the deposition testimony of one of defendant’s employees that:
“You shouldn’t have boxes no more stocked then five low so they are visible [sic]. All boxes should be stocked on one side . . . That’s part of preventing an accident when you stock boxes high. Most people don’t look down when they are walking.”
Thus, there was a factual issue whether the single box, of modest size, and situated just off the corner, near the center of the aisle, was open and obvious to a customer rounding the corner of the aisle. That issue of fact requires reversal of the order appealed and reinstatement of the complaint. However, I disagree with the majority’s ruling that the open and obvious doctrine negates only a duty to warn of conditions and permits recovery under a theory of a violation of a duty to maintain premises in reasonably safe condition. Such a rule effectively eliminates the open and obvious doctrine, invites potentially limitless actions of questionable societal value, and exposes landowners to insurer-like liability.
The starting point of the inquiry is the general principle that a landowner must maintain its property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v Miller, 40 NY2d 233, 241 *77[1976] [internal quotation marks omitted]). The “existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration,” and depends on a balancing of such factors as “the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585, 586 [1994]). Moreover, “[j]udicial recognition of a duty of care must be based upon an assessment of its efficacy in promoting a social benefit as against its costs and burdens” (Peralta v Henriquez, 100 NY2d 139, 145 [2003]).
The open and obvious doctrine was developed in recognition of the principle that, where a condition is so readily observable through the use of one’s ordinary senses and common sense that the landowner has no reason to expect that anyone will not observe it and take the appropriate measures to protect him or herself, the landowner has no duty to warn of the danger (see Tagle v Jakob, 97 NY2d 165, 170 [2001]). The obviousness of the danger itself serves as a warning, and any other notice by the landowner would add nothing.
The same reasoning applies to the landowner’s general duty to maintain premises in a safe condition. By its very definition, an open and obvious condition is one which a landowner has “no reason to expect that [anyone] would not observe ... or any conceivable risk associated with it” (id.). That is another way of stating that it is not foreseeable, within the meaning of tort law, that someone will be injured in connection with a patent hazard, and thus there is no basis for imposing liability on the landowner. Accordingly, the fact that a hazard is open and obvious cannot be just another factor in an analysis of foreseeability, as the Third Department has found (see MacDonald v City of Schenectady, 308 AD2d 125, 129 [2003]), and as the majority here now adopts. Again, a landowner has a duty only to maintain the premises in a “reasonably safe” condition (see Basso, 40 NY2d at 241), not to act as an absolute insurer against every possible harm, no matter how unforeseeable or unreasonable; the “duty of a landowner ... is not limitless” (Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]).
Indeed, this Court has previously held that “there is no duty to protect or warn against conditions that are in plain view, *78open, obvious, and readily observable by those employing the reasonable use of their senses” (Pinero v Rite Aid of N.Y., 294 AD2d 251, 252 [2002] [internal quotation marks and citations omitted]), which the Court of Appeals has affirmed (99 NY2d 541 [2002]). Thus, that is the rule in this state.
To find otherwise would also ignore the Palka factors of disproportionate risk and reparation allocation, the likelihood of unlimited or insurer-like liability, the proliferation of claims of dubious merit, and the reasonable expectations of the parties and society (see Palka, 83 NY2d at 586-587). A contrary rule would preclude landowners from availing themselves of the least expensive manner of preventing accidents, i.e., giving a warning, and impose upon them the cost of removing, altering or barricading conditions deemed to constitute a hazard, or else the financial burden of serving as the insurer of those who disregard patent dangers or fail to use their ordinary senses. Although the removal of a cardboard box, the hazard in the instant case, would have involved little cost to defendant, courts “must be mindful of the future effects their ruling will have” (Peralta, 100 NY2d at 144-145), and it is not difficult to imagine future instances in which the cost of abating an obvious condition would be disproportionate and even prohibitive.
Ellerin and Gonzalez, JJ., concur with Saxe, J.; Buckley, P.J., and Marlow, J., concur in a separate opinion by Buckley, P.J.
Order, Supreme Court, Bronx County, entered April 25, 2003, reversed, on the law, without costs, defendants’ motion for summary judgment denied and the complaint reinstated.