Opinion
February 10, 1999
Appeal from Order of Supreme Court, Monroe County, Fisher, J. — Summary Judgment.
Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained on November 4, 1995 at approximately 7:10 P.M., when he fell approximately 100 feet into a gravel pit located on land adjacent to Mendon Ponds Park, a public park operated by defendant County of Monroe. Plaintiff testified at a General Municipal Law § 50-h hearing that, although the sun had set, a full moon enabled him to see clearly. From a vantage point some two feet from the edge of the cliff, he observed his friends 100 feet below. He then moved away from the edge of the cliff and proceeded to walk around the gravel pit some four to five feet from its edge so that he could rejoin his friends. He went over a small hill, found himself at the edge of the cliff, lost his balance, and fell. Plaintiff testified that he knew of the existence of the cliff, that he considered four to six feet from the edge of the cliff to be a comfortable distance, and that nothing obstructed his, view of the cliff.
Supreme Court properly determined that, as a matter of law, plaintiff's conduct was the sole proximate cause of the accident and granted the motions of defendants Robert Lehman and Mercedes Lehman, the owners of the land encompassing the gravel pit, and of defendant William D. Schaefer, d/b/a Schaefer's Genesee Sand and Gravel, the operator of the gravel pit, for summary judgment dismissing the complaint.
It is well established that a landowner or occupier of land owes a duty to persons coming upon his or her land "to keep it in a reasonably safe condition, considering all the circumstances, including the purpose of the person's presence on the land and the likelihood of injury" ( Christmann v. Murphy, 226 A.D.2d 1069, 1070, lv denied 89 N.Y.2d 801). There is, however, "no duty on the part of a landowner [or occupier of land] to warn against a condition that can readily be observed by those employing the reasonable use of their senses" ( Tarricone v. State of New York, 175 A.D.2d 308, 309, lv denied 78 N.Y.2d 862). Where the condition is open and obvious, "the condition is a warning in itself" ( Tarricone v. State of New York, supra, at 309). Because plaintiff's testimony establishes that the cliff was an open and obvious danger and that plaintiff fully appreciated the danger it presented, defendants Lehmans and Schaefer had no duty "to protect plaintiff from the unfortunate consequences of his own actions" ( Macey v. Truman, 70 N.Y.2d 918, 919, mot to amend remittitur granted 71 N.Y.2d 949; see also, Plate v. City of Rochester, 217 A.D.2d 984, lv denied 87 N.Y.2d 801; Tarricone v. State of New York, supra).