Opinion
22057/2004.
Decided June 6, 2008.
Steven Wildstein Esq., Great Neck, NY, for Plaintiff.
Warren S. Koster Esq., Callan, Koster, Brady Brennan, New York, NY, for Defendant.
I. BACKGROUND
At first blush, the facts of this case may suggest minor injuries from plaintiff child's own carelessness in stepping on a loose soap dish affixed to the shower wall at defendant's shelter. When the circumstances are fully explored, however, plaintiff in fact suffered severe injuries to his foot for which defendant may be at least partially liable.
Plaintiff, a resident at defendant's shelter, sues to recover for the personal injuries he sustained January 29, 2003, when he stepped on the broken soap dish in the shower there. Defendant moves for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that defendant is not responsible for plaintiff's injuries. For the reasons explained below, the court denies defendant's motion.
II. DEFENDANT'S LIABILITY
Defendant, as the owner of the premises where plaintiff was injured, assumed a duty to maintain the premises in reasonably safe condition. Branham v. Loews Orpheum Cinemas, Inc. , 31 AD3d 319 , 322 (1st Dep't 2006), aff'd, 8 NY3d 931 (2007). Defendant contends it is not liable because it lacked actual notice of any defect in the soap dish and plaintiff's use of the soap dish was unforeseeable.
A. Notice
Upon defendant's summary judgment motion seeking to establish nonliability for a hazardous condition on defendant's premises, defendant bears the burden to show that defendant did not create the condition, Garcia v. New York City Tr. Auth. , 40 AD3d 399, 400 (1st Dep't 2007); Genen v. Metro-North Commuter R.R., 261 AD2d 211, 215 (1st Dep't 1999), and lacked notice of a defect. Branham v. Loews Orpheum Cinemas, Inc., 31 AD3d at 322, aff'd, 8 NY3d 931; Mitchell v. City of New York , 29 AD3d 372, 374 (1st Dep't 2006); Moreira v. City of New York , 4 AD3d 311, 312 (1st Dep't 2004); Daniels v. Brisbane Leasing Ltd. Partnership , 24 AD3d 409 (2d Dep't 2005). Shelly Rose, the director of defendant's shelter, in her deposition testimony, denied receiving any complaints pertaining to the apartment where plaintiff's injury occurred in the three months preceding his injury, which demonstrates that defendant lacked actual notice of a defective soap dish. Edwards v. 727 Throgs Neck Expressway, Inc. ,24 AD3d 290 (1st Dep't 2005); Rouse v. Lex Real Assoc. , 16 AD3d 273, 274 (1st Dep't 2005); Matcovsky v. Days Hotel , 10 AD3d 557, 558 (1st Dep't 2004); Stefan v. Monkey Bar, 273 AD2d 133 (1st Dep't 2000).
Plaintiff's mother, Elizabeth Garcia, testified at her deposition, however, that soon after her family began residing at defendant's shelter she noticed the soap dish was loose and orally complained of this condition two or three times to defendant's employees in the reception area. This evidence raises factual issues regarding defendant's actual notice, Weisbart v. Hudson Manor Terrace Corp., 299 AD2d 160 (1st Dep't 2002), and the credibility of the two witnesses with different accounts. Medina v. 203 W. 109th St. Realty Corp. , 16 AD3d 220 (1st Dep't 2005). Although Rose also testified that the procedure for reporting problems in apartments generated written reports, the court in determining defendant's liability may not assume from her inability to find such complaint reports that defendant's employees complied with those procedures. See Branham v. Loews Orpheum Cinemas, Inc., 31 AD3d at 325, aff'd, 8 NY3d 931.
B. Foreseeability
An owner's duty to maintain its premises in safe condition is limited to reasonably perceived risks of harm. DiPonzio v. Riordan, 89 NY2d 578, 583 (1997); Lee v. City of New York, 25 AD3d 214, 217 (1st Dep't 2005). As long as the risk of harm is foreseeable, defendant's liability does not depend on the particular way plaintiff's injury occurred. Sanchez v. State of New York, 99 NY2d 247, 252 (2002); Buckley v. Sun Surf Beach Club, 95 NY2d 914, 915 (2000); Kriz v. Schum, 75 NY2d 25, 34 (1989). Here, plaintiff testified at his deposition that he placed his foot, bearing at least part of his weight, up onto the soap dish that was affixed to the shower wall. Nevertheless, if defendant had notice of the soap dish's loose condition, his injury from the broken fixture due to such misuse is foreseeable, Holloway v. Willette Corp. of N.J., 280 AD2d 876, 877 (3d Dep't 2001); see Torres v. New York City Tr. Auth., 305 AD2d 165, 166 (1st Dep't 2003); Isler v. BUILD Inc., 293 AD2d 389, 390 (1st Dep't 2002), particularly since plaintiff was a young child when he was injured. Cummings v. New York City Hous. Auth., 261 AD2d 335, 336 (1st Dep't 1999); Abdur-Rashid v. Consolidated Rail Corp., 135 AD2d 208, 210 (1st Dep't 1988).
The parties do not dispute that Rose was aware of plaintiff's residence at the shelter. Since children are less wary of dangers readily apparent to adults, defendant was expected to take into account children's natural curiosity and tendency to examine and experiment with their surroundings while disregarding any danger from such activity. Schwartz v. Armand Erpf Estate, 255 AD2d 35, 39 (1st Dep't 1999). Defendant presents no evidence that plaintiff in fact appreciated the risk of climbing or resting his foot on the soap dish. A determination of plaintiff's ability to appreciate the risk must be based on his intelligence, knowledge, and experience. Bello v. Fieldhouse at Chelsea Piers , 18 AD3d 272, 274 (1st Dep't 2005); Clark v. Interlaken Owners , 2 AD3d 338, 339 (1st Dep't 2003); Morlock v. Town of N. Hempstead , 12 AD3d 652 , 653 (2d Dep't 2004); Gamble v. Town of Hempstead, 281 AD2d 391 (2d Dep't 2001). Plaintiff testified that his mother advised him of the loose soap dish and not to rest his foot on it, but that he forgot her advice when he was injured. Thus defendant has failed to demonstrate that plaintiff was aware of the risk from his own misuse of the soap dish such that he assumed that risk. Bello v. Fieldhouse at Chelsea Piers, 18 AD3d at 274; Clark v. Interlaken Owners, 2 AD3d at 340; Trainer v. Camp Hadar Hatorah, 297 AD2d 731, 732 (2d Dep't 2002). See Morlock v. Town of N. Hempstead, 12 AD3d at 653.
C. Causation
Defendant, upon its summary judgment motion, must establish further that its negligence was not a substantial cause of the injury producing event. Ruiz v. 30 Real Estate Corp. , 47 AD3d 432 (1st Dep't 2008); Torres v. City of New York, 32 AD2d 347, 349 (1st Dep't 2006); Abrahamian v. Tak Chan , 33 AD3d 947, 949 (2d Dep't 2006); Jones v. New York City Hous. Auth. , 13 AD3d 489 (2d Dep't 2004). See Maheshwari v. City of New York ,2 NY3d 288, 295 (2004) Boltax v. Joy Day Camp, 67 NY2d 617, 619 (1986); Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 (1980). When defendant claims an intervening act caused plaintiff's injuries, defendant's nonliability requires a showing that the intervening act was not a foreseeable consequence of a situation that defendant's negligence created. Butler v. Seitelman, 90 NY2d 987, 989 (1997); Kriz v. Schum, 75 NY2d at 35; Boltax v. Joy Day Camp, 67 NY2d at 619. Plaintiff's conduct may sever the causal connection between defendant's omission and plaintiff's injury, but only if plaintiff's conduct is independent of defendant's omissions. Egan v. A.J. Constr. Corp., 94 NY2d 839, 841 (1999); Lee v. New York City Hous. Auth., 25 AD3d at 220; Skibinski v. Salvation Army, 307 AD2d 427, 428 (3d Dep't 2003).
Thus, if plaintiff's injury from his misuse of the soap dish was a foreseeable result of defendant's failure to repair the soap dish, defendant remains liable. Lynch v. Bay Ridge Obstetrical Gynecological Assocs., 72 NY2d 632, 637-37 (1988); Emanuel v. Sheridan Transp. Corp. , 10 AD3d 46 , 57-58 (1st Dep't 2004); Toyos v. City of New York, 304 AD2d 319, 320 (1st Dep't 2003); Gross v. New York City Tr. Auth., 256 AD2d 129, 130 (1st Dep't 1998). Here, defendant has not shown the unforeseeability of a person using the shower, particularly a child, pressing his hand, foot, or other part of his body against the loose soap dish and, due its looseness, breaking it. Instead, when plaintiff rested his foot on the soap dish or climbed on it, and it collapsed, causing his injury, this result depended on defendant's failure to repair the loose soap dish. Shutak v. Handler, 190 AD2d 345, 347 (1st Dep't 1993). Therefore, while plaintiff's conduct may be a contributing cause of his injury, id. at 348, defendant has not sustained its burden to establish that plaintiff's conduct was the sole cause and that the soap dish's unrepaired loose condition did not contribute to its breakage and his injury. Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993); Skibinski v. Salvation Army, 307 AD2d at 428; Holloway v. Willette Corp. of N.J., 280 AD2d at 878. See Pinto v. Selinger Ice Cream Corp. , 47 AD3d 496, 497 (1st Dep't 2008); Turner v. City of New York, 290 AD2d 336 (1st Dep't 2002); Murray v. New York City Hous. Auth., 269 AD2d 288, 290 (1st Dep't 2000).
III. CONCLUSION
In sum, plaintiff's evidence raises factual issues regarding defendant's actual notice of the defective soap dish and its contribution to plaintiff's injury. Plaintiff's conduct, even if playful or careless, is not so extraordinary or unforeseeable that it would be unreasonable to hold defendant liable under all the circumstances suggested by the current record. Shutak v. Handler, 190 AD2d at 348; Holloway v. Willette Corp. of N.J., 280 AD2d at 878. See Martinez v. City of New York, 287 AD2d 414 (1st Dep't 2001). Consequently, the court denies defendant's motion for summary judgment. C.P.L.R. § 3212(b).