Opinion
No. 906/2013.
09-02-2014
Fedra PANAGOS, Plaintiff, v. BROOKLYN BOTANIC GARDEN CORPORATION, Defendant.
Opinion
| Papers | Numbered |
|---|---|
| Notice of Motion–Affirmation–Exhibits | 1–6 |
| Plaintiff's Affirmation in Opposition | 7–10 |
| Reply Affirmation | 11–13 |
Plaintiff, Fedra Panagos, commenced an action on January 15, 2013, to recover damages for personal injuries she allegedly sustained on July 8, 2012, when she tripped and fell on a series of three steps located near the Cherry Esplanade and Rose Arc Pool at the Brooklyn Botanical Gardens owned by defendant, Brooklyn Botanic Garden Corporation. In her bill of particulars and supplemental bill of particulars, the plaintiff alleges that she fell due to the change of the elevation of the steps along the pathway and that the steps were negligently designed, constructed and maintained. Plaintiff claims that the steps were defective because there was no visual cue as to the change in elevation; the stair treads were improperly designed and too deep; and there was a failure to warn of the existence of the steps. As a result of the accident the plaintiff, age 73, sustained a fractured left ankle, fractured right wrist, non-displaced fracture at the base of the fifth metacarpal, distal fibula fracture, and fifth metatarsal fracture. The plaintiff filed a note of issue on March 24, 2014. The matter is presently on the calendar in the Trial Scheduling Part on October 21, 2014.
Defendant now moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's complaint on the ground that the steps that plaintiff tripped on were not an inherently dangerous condition. Defendant contends that the steps, which are adjacent to a ramp and handrail, were readily observable, were open and obvious, were not cracked or broken, and should have been observed by the plaintiff as she walked on the subject property. Counsel for defendant contends that the defendant had no duty to warn of a condition that the plaintiff should have readily observed by the reasonable use of her senses.
In support of the motion, the defendant submits a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; copies of the transcripts of the examination before trial of the plaintiff, Fedra Panagos, and the defendant by Gerard Rudloff and Tracey Fairelan. Defendant also submits photographs of the steps in question and a copy of the Brooklyn Botanic Garden Visitor Map.
In her examination before trial, taken on July 24, 2013, Fedra Panagos, testified that she was involved in an accident at the Brooklyn Botanic Garden on July 8, 2012, at approximately 5:00 p.m. The accident occurred by the Rose Pool Garden and the Cherry Esplanade. She had a map of the Garden with her. She stated that she did not see any steps in the area where she fell. She stated that she was looking ahead as she was walking towards the Rose Garden. She took two or three steps on the path and all of a sudden she found herself on the ground. She stated that she observed the surface she fell on to be level. She did not observe a ramp or handrail in the vicinity where she fell. When asked what caused her to fall she stated there was a step that she was walking down that she could not see. She did not realize there was a step until after she fell. She stated that she twisted her left ankle and fell forward on her face. Her friend summoned help and a security guard responded with a golf cart. She told the security guard that she fell because she did not see the step. She stated that there was no sun glare or anything else obstructing her view of the steps. She does not remember any debris or cracks in the cement where she fell. There were no warning signs with respect to the steps. Her friend drove her to St. Francis Hospital where she was treated for a fractured left ankle and fractured right wrist.
Gerard Rudloff, the Director of Facilities at the Brooklyn Botanic Garden testified on July 24, 2013. He stated that the repair of the 52 acres of walkways and pathways at the Garden are under his control. He visits various locations at the Garden on a regular basis. If a pathway needs restructuring the project would come under the jurisdiction of Capital Projects Division. He stated that the overall design of the pathways in the Garden have been designed by professional architects and designers. He stated that his staff is instructed to report repairs or issues as they travel the grounds. He stated that there is no area in the Garden in which there are signs warning patrons of changes in elevation or that they are approaching a set of stairs. There is also no special painting on the stairs. He identified the area where the plaintiff fell as the south end of the Cherry Esplanade adjacent to the Rose Pool. With respect to the set of three steps in the area of the plaintiff's fall, he stated that the steps are 5–5½ feet long and 12 feet wide. He estimated that the set of stairs was constructed 10–15 years ago and was renovated to add a ramp to make it ADA compliant. He stated that he was not aware of building code regulations which regulate the dimensions for exterior staircases. He was also not aware of any other reported incidents of people tripping or stumbling on the staircase in question. He states that he has never had a problem on the subject staircase of discerning where one step ends and another begins.
On October 24, 2014, the plaintiff took the deposition of Tracey Fairelan, the Director of Capital Projects for the past five years at Brooklyn Botanic Garden. She stated that she did not know when the subject steps were constructed although she approximated more than 10 years ago. She stated that she was not aware of the New York Building Code regarding the subject stairs and she stated that she was not aware of any code that required warning signs to be posted at staircases. She stated that the steps in question were removed in the Spring of 2013 and replaced with a ramp to make it accessible to golf carts and vehicular traffic. She stated that security is in charge of preparing incident reports when there is an accident on the premises.
Counsel for defendant, Marianne Arcieri, Esq. states that the plaintiff testified that she fell because she did not observe the subject steps, there was no debris on the steps, the steps were not cracked or broken, and there was nothing obstructing the plaintiff's view of the steps. Counsel argues that the complaint should be dismissed because there was no dangerous condition and claims that the steps themselves do not constitute a dangerous condition. Counsel claims that for a landowner to be liable to a plaintiff as a result of a dangerous condition it must be established that a dangerous condition existed (citing Gonzalez v. Natick N.Y. Freeport Realty Corp., 91 AD3d 597 [2d Dept.2012] ; Scarpinito v. Pathmark Stores, Inc., 26 AD3d 322 [2d Dept.2006] ). Counsel states that he landowner is entitled to summary judgment where it is established that no dangerous condition existed on the premises (citing Moser v. Lavipour & Co., Inc., 35 AD3d 414 [2d Dept.2006] ).
Further counsel asserts that the defendant has no duty to warn of an open and obvious condition that can be readily observed by the reasonable use of ones senses and is not inherently dangerous (citing Brown v. Melville Indus. Assoc., 34 AD3d 611[2d Dept.2006] ). The defendant contends that although a landowner who holds property open to the public has a duty to maintain the property in a reasonably safe condition to prevent injuries, that duty extends only to conditions that are not readily observable. It is argued that the steps in question were readily observable to anyone that was paying attention. Counsel asserts that the photographs show clearly visible steps with an adjacent ramp and handrail. Defendant also claims that the stairs are indicated on the map of the garden which is given to visitors upon their arrival. Counsel states that given the nature of the gardens as an outdoor location, the steps, which were not hidden, do not constitute a dangerous condition. Defendant submits that it has no duty to warn of the steps or to paint the risers as the existence of the steps was open and obvious. Defendant asserts that the cause of the accident was the plaintiff's failure to pay attention to what was in front of her and her failure to see what was there to be seen.
In opposition, Joshua B. Sandberg, Esq., counsel for the plaintiff, asserts that there is a question of fact regarding whether a dangerous condition existed with regard to the steps. Plaintiff claims that there is a question of “optical confusion” stemming from the defendant's failure to mark or otherwise distinguish the steps in any meaningful fashion (citing Chafoulias v. 240 E. 55th Street Tenants Corp., 141 A.D.2d 207 [1st 1988] ). Counsel claims that a staircase may be dangerous where the conditions creates “optical confusion”-the illusion of a flat surface visually obscuring the step (see Langer v. 116 Lexington Ave., Inc., 92 AD3d 597 [1st Dept.2012] ; Brooks v. Bergdorf–Goodman Co., [1st Dept.1958] ). Counsel states that where there is inadequate warning of a drop, poor lighting, inadequate demarcation between raised and lowered areas or some mother distraction, the court may find that the condition is dangerous (citing Schreiber v. Philip & Morris Restaurant Corp., 25 A.D.2d 262 [1st Dept.1966] ). Plaintiff asserts that even visible hazards may not necessarily qualify as open and obvious because the nature or location of some hazards while technically visible make them likely to be overlooked (citing Westbrook v. WR Activities–Cabrera Mkts., 5 AD3d 69 [1st Dept.2004] ). Counsel claims that the bill of particulars asserts that the dangerous condition herein was treads and/or steps that transitioned from one height to another without required visual cues, and a short flight of stairs that had no signs, signals, warnings or other devices that would alert pedestrians to a change in levels and a short flight of stairs that was designed or constructed so as to create optical confusion. Counsel claims that the photographs show that the steps, which have a similarity in surface colors, and a failure to demarcate the edge of the steps, creates the illusion of a level surface without warning (see Langer v. 116 Lexington Ave., Inc., 92 AD3d 597 [1st Dept.2012] ). Counsel contends that the plaintiff testified that she could not see the step before she fell but only realized that it was a step that caused her fall after she fell. Plaintiff claims that the photographs reveal that it is difficult, if not impossible to distinguish where one step ends and another begins.
Further counsel asserts that the handrail accompanies the ramp and not the steps which are 12 feet wide. Therefore, plaintiff claims that she fell not because she was failed to look ahead of her, but because she could not see the step and believed that the ground in front of her was level because of optical confusion (see Saretsky v. 85 Kenmare Realty Corp., 85 AD3d 89 [2d Dept.2011] ; Chafoulias v. 240 E. 55th Street Tenants Corp., 141 A.D.2d 207 [1st Dept.1988] ). Counsel asserts that as there is an issue of fact as to whether the steps created optical confusion and or whether a person could reasonably perceive the existence of a change in elevation, the defendant's motion for summary judgment should be denied (citing Roros v. Oliva, 54 AD3d 398 [2d Dept.2008] ).Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ).
While a landowner has a duty to maintain its premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233 [1976], Rivas–Chirino v. Wildlife Conservation Socy., 64 AD3d 556 2d Dept.2009], there is no duty on the part of a landowner to warn against, and a court is not precluded from granting summary judgment, where the condition complained of is an open and obvious condition that is readily observable by those employing the reasonable use of their senses and is not inherently dangerous (see Brande v. City of White Plains, 107 AD3d 926 [2d Dept.2013] ; Boyd v. New York City Hous. Auth., 105 AD3d 542 [1st Dept.2013] ; Buccino v. City of New York, 84 AD3d 670[1st Dept.2011] ). No duty exists to prevent or even warn of conditions which can be readily perceived by the use of ones senses.
However, this Court finds that the defendant failed to establish prima facie, that the steps which allegedly caused plaintiff to injure herself was open and obvious, was not inherently dangerous, and did not present an unreasonable or foreseeable risk of harm. The testimony of the plaintiff, as well as the photographs submitted, demonstrate that because of the long length and width of the steps, the width being almost the width of the entire pathway, and the small drop in each step, that there is a question of fact as to whether the design of the steps creates an illusion of a flat or level surface which obscured the steps when walking towards the direction of the descending steps. The photographic evidence shows that the illusion is much more prominent and the stairs much less discernable for those walking down the steps rather than up (see Saretsky v. 85 Kenmare Realty Corp., 85 AD3d 89[1st Dept.2011] ).
Thus, based upon the design of the steps, under certain lighting conditions there appears to be an optical illusion or optical confusion which could cause the perception that the pathway is level. As it appears that there was no obvious drop in elevation, one could believe that they were walking on a straight pathway and stumble on the step that was very shallow in depth and could be found to be imperceptible. “Optical confusion” occurs when conditions in an area create the illusion of a flat surface, visually obscuring any steps. Saretsky v. 85 Kenmare Realty Corp., supra. quoting Brooks v. Bergdorf–Goodman Co., 5 A.D.2d 162 [1st Dept 1958] ). “Even visible hazards do not necessarily qualify as open and obvious because of the nature or location of some hazards, while they are technically visible, make them likely to be overlooked” (Westbrook v. WR Activities–Cabrera Mkts., 5 AD3d 69 [1st Dept.2004] citing Thornhill v. Toys “R” Us NYTEX, 183 A.D.2d 1071 [3d Dept.1992] ). Also see Langer v. 116 Lexington Ave., Inc., supra][a step may be dangerous where the conditions create “optical confusion”—the illusion of a flat surface, visually obscuring the step]; Brooks v. Bergdorf–Goodman Co., supra. Here, there was no evidence that the defendant attempted to mark or distinguish the steps in any meaningful fashion (see Chafoulias v. 240 E. 55th Street Tenants Corp., supra [plaintiff's negligence theory of optical confusion, due to defendant's failure to mark or otherwise distinguish the steps in any meaningful fashion, exacerbated by the proximity of the entrance doors to the steps, is both legally sufficient and adequately supported by the record to preclude summary judgment].
Therefore, this court finds that he evidence submitted by the defendant raises a question of fact as to whether, under the circumstances, a person who was unfamiliar with the premises could reasonably perceive the existence of a change in elevation when walking down the pathway or whether the subject area created “optical confusion” (see Roros v. Oliva, 54 AD3d 398 [2d Dept.2008] ). Therefore, as the defendant did not post warning signs or contrast the surface colors or risers to alert a pedestrian to the slight change in levels, triable issues of fact exist as to whether the condition of the steps was open and obvious and not inherently dangerous (see Russo v. Frankels Garden City Realty Co., 93 AD3d 708 [2d Dept.2012] and whether defendant was negligent in failing to provide any warning, visual cues, or barriers.
Accordingly, for the reasons set forth above, it is hereby,
ORDERED, that the defendant's motion for summary judgment is denied.