Opinion
Index No. EF2021373
11-10-2022
Robert Catman, Plaintiff, v. Back Water Grille, LLC, Defendant.
For Plaintiff: Christopher R. Burke, Esq. For Defendant: Joseph A. Nett, Esq.
Unpublished Opinion
For Plaintiff: Christopher R. Burke, Esq.
For Defendant: Joseph A. Nett, Esq.
Thomas D. Buchanan, J.
Plaintiff sues to recover damages for personal injuries sustained while delivering beer to the defendant Backwater Grille. While traversing a hallway within the premises, Plaintiff noticed a plastic rowing oar on the floor. Rather than asking an employee to move the oar, Plaintiff took it upon himself to do so, whereupon Plaintiff lost his balance and tripped over said oar, thereby sustaining injury. Defendant moves for summary judgment on the grounds that the subject oar is not an inherently dangerous condition and was readily observable, open and obvious, citing case authority including Gibbons v. Lido & Point Lookout Fire District (293 A.D.2d 646 [2d Dept 2002]).
Plaintiff maintains that although the open and obvious nature of a condition may defeat a claim for failure to warn, it does not absolve Defendant from its duty to maintain. Plaintiff's reliance upon McDonald v. City of Schenectady (308 A.D.2d 125 [3d Dept 2003]) is misplaced. In McDonald, the plaintiff sued for injuries sustained while walking on a sidewalk with large cracks which had been in need of repair for a number of years due the previous removal of a tree stump. There was no question that the sidewalk was in need of repair and was in an unsafe condition. The McDonald court held that policy considerations would dictate that the simple obvious nature of a dangerous condition should not, alone, obviate a landowner's duty to maintain his property in a safe condition. (McDonald, 308 A.D.2d at 127.) Here, the mere presence of an oar on the floor of a hallway does not constitute the type of inherently dangerous and persistent condition addressed in McDonald.
While a landowner has a duty to maintain his premises in a reasonably safe manner, there is no duty to protect or warn against an open obvious condition which as a matter of law is not inherently dangerous (Neiderbach v. 7-Eleven, Inc., 56 A.D.3d 632 [2d Dept 2008]). In Neiderbach, the plaintiff tripped and fell over a blue plastic crate on the floor of an aisle in the defendant's store. The Court held that the mere presence of said crate did not constitute an inherently dangerous condition, was readily observable, and accordingly dismissed the complaint. Similarly here, the presence of the oar in the hallway was readily observable to Plaintiff, who fell during his own attempt to remove it. Accordingly, the complaint must be dismissed.
The parties' remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby
ORDERED, that the motion by defendant Backwater Grille, LLC seeking summary judgment dismissing the Complaint in this action is granted, and the Complaint is hereby dismissed.
Papers considered:
Notice of Motion; Affirmation of Joseph A. Nett, Esq., with annexed exhibits; Notice of Cross-Motion; Affirmation of Christopher R. Burke, Esq., with annexed exhibits; Affirmation of Joseph A. Nett, Esq. in Opposition to Cross-Motion and in Further Support of Defendant's Motion