Opinion
10-27-2016
Eugenia BRUMM, Respondent, v. ST. PAUL'S EVANGELICAL LUTHERAN CHURCH, Appellant.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for appellant. O'Connell & Aronowitz, Saratoga Springs (Paul Pelagalli of counsel), for respondent.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for appellant.
O'Connell & Aronowitz, Saratoga Springs (Paul Pelagalli of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, GARRY, CLARK and AARONS, JJ.
GARRY, J.Appeal from an order of the Supreme Court (R. Sise, J.), entered September 18, 2015 in Saratoga County, which denied defendant's motion for summary judgment dismissing the complaint.In March 2012, plaintiff tripped and fell on a sidewalk adjacent to property owned by defendant in the City of Saratoga Springs, Saratoga County. She commenced this negligence action asserting that her fall was caused by a deteriorated portion of the sidewalk. Following discovery, defendant moved for summary judgment dismissing the complaint, arguing, as pertinent here, that the sidewalk defect was too trivial to be actionable and that plaintiff's identification of the defect as the cause of her fall was speculative. Plaintiff opposed the motion, and Supreme Court denied it. Defendant appeals.
Pursuant to Code of the City of Saratoga Springs § 203–25, adjacent landowners are responsible for the maintenance and repair of sidewalks and for any liability resulting from the failure to do so.
We agree with Supreme Court that defendant did not meet its burden to establish on a prima facie basis that the alleged defect “was too trivial to be actionable” (Chirumbolo v. 78 Exch. St., LLC, 137 A.D.3d 1358, 1359, 26 N.Y.S.3d 637 [2016] ). While property owners are not held liable for trivial defects, “a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperils the safety of a pedestrian” (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] [internal quotation marks, brackets and citation omitted] ). Factors to be taken into account include “the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury” (Wilson v. Time Warner Cable, 6 A.D.3d 801, 801, 774 N.Y.S.2d 584 [2004] [internal quotation marks and citation omitted]; accord Alig v. Parkway Parking of N.Y., Inc., 36 A.D.3d 980, 981–982, 829 N.Y.S.2d 242 [2007] ). Whether a property condition constitutes an actionable defect is generally a factual question to be resolved by a jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ; Gillis v. Herzog Supply Co., Inc., 121 A.D.3d 1334, 1335, 995 N.Y.S.2d 314 [2014] ).
Plaintiff, a parishioner at defendant's church, testified that the weather was clear and there was no snow on the ground at the time of her fall. She was approaching the church in the late morning, carrying a handbag and a binder, when the toe of her right foot caught on something. As she took the next step, her left ankle rolled and she fell. She was taken to a hospital for treatment of serious injuries to her ankle, wrist and hand. At the time of her fall, plaintiff did not look at the sidewalk to determine the precise cause, but she returned to the site approximately one month later and identified a cracked, uneven area of the sidewalk as the location and cause of her fall. Her expert witness, a forensic architect, photographed a crack measuring 18 inches long in what he described as a “deteriorated[ ] and uneven sidewalk flag,” with a raised vertical surface of approximately one inch. Based upon his observations and experience, the expert opined with a reasonable degree of professional certainty that the defect created a dangerous condition, and that this condition had existed for an extended period of time before plaintiff's fall.
As defendant contends, there is authority to the effect that small changes in elevation in walkways that are otherwise in good condition are trivial and nonactionable as a matter of law (see e.g. Chirumbolo v. 78 Exch. St., LLC, 137 A.D.3d at 1359, 26 N.Y.S.3d 637 [“slight” height differential]; Castle v. Six Flags, Inc., 81 A.D.3d 1137, 1138, 917 N.Y.S.2d 386 [2011] [height differential of about one inch]; Smith v. Wilerdam Prop., Inc., 50 A.D.3d 1349, 1349–1350, 857 N.Y.S.2d 742 [2008] [height differential of one-quarter inch]; Trionfero v. Vanderhorn, 6 A.D.3d 903, 904, 774 N.Y.S.2d 612 [2004] [height differential of less than one inch] ). However, when—as here—a height differential results from the deterioration in a walkway that is cracked or broken, a triable issue of fact may be posed as to whether the accident was caused by an actionable dangerous condition (see Tese–Milner v. 30 E. 85th St. Co., 60 A.D.3d 458, 458, 873 N.Y.S.2d 905 [2009] [“a depressed area with a rough, uneven surface”]; Hahn v. Wilhelm, 54 A.D.3d 896, 897, 865 N.Y.S.2d 240 [2008] [“a cracked and uneven” surface]; Mishaan v. Tobias, 32 A.D.3d 1000, 1001–1002, 821 N.Y.S.2d 640 [2006] [“a cracked and broken sidewalk”]; see also Denmark v. Wal–Mart Stores, 266 A.D.2d 776, 777, 699 N.Y.S.2d 499 [1999] [conflicting testimony as to whether concrete was missing from depressed area in walkway] ).
Photographs of the sidewalk where plaintiff fell depict a deteriorated area with various cracks in several adjacent slabs on the side of the walk bordering the street. In the location where plaintiff alleges her accident occurred, the deteriorated area takes up approximately one third of the sidewalk. The photographs reveal that the cracked section of concrete where plaintiff fell is depressed below the surface of the rest of the sidewalk, creating a raised, irregular vertical edge measuring, as previously noted, approximately one inch high and 18 inches long. In view of the length and depth of the crack where the fall occurred, the uneven surface of the walkway and the overall size of the deteriorated area, we agree with Supreme Court that it cannot be determined as a matter of law that the condition “was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” (Evans v. Pyramid Co. of Ithaca, 184 A.D.2d 960, 960, 584 N.Y.S.2d 944 [1992] ; accord
Tracy v. St. Patrick's Church, 234 A.D.2d 871, 871–872, 651 N.Y.S.2d 680 [1996] ).
Defendant likewise failed to meet its burden to prove on a prima facie basis that plaintiff's identification of the location of her fall was too uncertain to establish that the defect was the proximate cause of the fall. A defendant can meet this burden by proving “that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” (Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 [2013] ; see Lane v. Texas Roadhouse Holdings, LLC, 96 A.D.3d 1364, 1364, 946 N.Y.S.2d 339 [2012] ). However, even when a plaintiff is unable to identify the cause of a fall with certainty, “a case of negligence based wholly on circumstantial evidence may be established if the plaintiff[ ] show[s] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” (Seelinger v. Town of Middletown, 79 A.D.3d 1227, 1229, 913 N.Y.S.2d 376 [2010] [internal quotation marks, brackets and citations omitted] ).
Here, although plaintiff acknowledged the delay in identifying the cause of her fall, she testified that she knew that her toe had caught on some object and decided to examine the location in question because she knew that it was “where something has to be.” She identified the cracked area as “exactly that spot that [her] shoe caught.” Although plaintiff's statements were not without some inconsistencies, we find her testimony adequate to allow a jury to rationally infer that the cracked area of the sidewalk caused her fall, without being forced to resort to mere speculation and surmise. Accordingly, Supreme Court properly denied defendant's summary judgment motion on this issue (see Dixon v. Superior Discounts & Custom Muffler, 118 A.D.3d 1487, 1488, 988 N.Y.S.2d 817 [2014] ; Seelinger v. Town of Middletown, 79 A.D.3d at 1229–1230, 913 N.Y.S.2d 376 ; DiGiantomasso v. City of New York, 55 A.D.3d 502, 502–503, 866 N.Y.S.2d 184 [2008] ).
ORDERED that the order is affirmed, with costs.
PETERS, P.J., McCARTHY, CLARK and AARONS, JJ., concur.