Opinion
Angela R. Cruz, Corporation Counsel of the City of New York, Brooklyn, for Defendant The City of New York.
Cary Scott Goldinger, Garden City, for Plaintiff Elba Paredes Maldonado.
KENNETH P. SHERMAN, J.
Upon the foregoing papers, defendant, The City of New York (the City), moves for an order, pursuant to CPLR 3212(b), dismissing the plaintiff's complaint alleging (1) that she cannot establish any non-speculative basis for the imposition of liability upon the City or, (2) that the alleged condition causing her injuries was open and obvious as a matter of law and thus non-actionable or, (3) that the plaintiff assumed the risk of her injury. In the alternative, the City moves for an order, pursuant to CPLR 3101(a)(1) and 3124, compelling the plaintiff to submit HIPAA compliant authorizations to obtain her emergency room treatment records and authorizations to obtain the plaintiff's employment files.
Background
This action results from personal injuries sustained in a trip and fall incident on September 25, 1999. The plaintiff, Elba Paredes Maldonado (Maldonado) alleges [908 N.Y.S.2d 842] that during a child's birthday party she was attending within Prospect Park in Brooklyn, she tripped over a tree branch that was lying on the floor of the picnic area and sustained a fracture to her left ankle. At the time she fell, the plaintiff was walking backwards, engaged in a game with children at the party.
In its moving papers, the City contends that, among other theories, it is entitled to summary judgment because the condition that allegedly caused the plaintiff's injury was open and obvious and thus, non-actionable as a matter of law. The City opines that while a landowner has a duty to maintain his property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous. In its opinion, a tree branch in a park is neither a defective condition, nor an inherently dangerous one and is open and obvious as contemplated by the case law.
In opposition, plaintiff alleges that summary judgment is improper because, among other things, a municipality that extends an invitation to its citizens to use its recreational areas owes a duty to exercise reasonable and ordinary care to protect those citizens from foreseeable dangers. Whether that duty has been satisfied is a jury question and not proper on a motion for summary judgment. Further, plaintiff proffers that while a condition may be open and obvious, precedent dictates that it does not serve to obviate the defendant's duty, but merely creates a question of comparative negligence for a jury.
Discussion
" The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). Once a showing is made, the burden shifts and the party opposing the motion must tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial or tender an acceptable excuse for his failure so to do ( see Greenberg v. Coronet Prop. Co., 167 A.D.2d 291, 562 N.Y.S.2d 33 [1990]; see Zuckerman 49 N.Y.2d at 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).
" While a landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances ( see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ), there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous' " ( Errett v. Great Neck Park Dist., 40 A.D.3d 1029, 837 N.Y.S.2d 701 [2007]; Capozzi v. Huhne, 14 A.D.3d 474, 474, 788 N.Y.S.2d 152 [2005]; see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40 [2003] ). " Landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one's senses" ( Torres v. State, 18 A.D.3d 739, 795 N.Y.S.2d 710 [2005]; see Cupo supra; DeLaurentis v. Marx Realty & Improvement, 300 A.D.2d 343, 752 N.Y.S.2d 349 [2002]; Moriello v. Stormville Airport Antique Show & Flea Mkt., 271 A.D.2d 664, 706 N.Y.S.2d 463 [2000] ). " Moreover, landowners will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the [908 N.Y.S.2d 843] nature of the property, and that could be reasonably anticipated by those using it" ( Torres supra; see also Nardi v. Crowley Mar. Assocs., 292 A.D.2d 577, 741 N.Y.S.2d 246 [2002]; Csukardi v. Bishop McDonnell Camp, 148 A.D.2d 657, 539 N.Y.S.2d 408 [1989] ). " Liability under common-law negligence will not attach when the allegedly dangerous condition complained of was open and obvious, particularly where the injured plaintiff was aware of it" ( Nardi supra; see Gonzalez v. Fastflex, Inc., 270 A.D.2d 229, 704 N.Y.S.2d 515 [2000] ).
The defendant has established its prima facie entitlement to summary judgment by presenting evidence, in the form of the plaintiff's testimony, that the condition causing the plaintiff's injury was open and obvious and inherent to the property thus, non-actionable as a matter of law. According to Maldonado's deposition, she testified that the afternoon of Saturday, September 25, 1999, was sunny with no evident precipitation. The plaintiff does not wear corrective glasses or contacts and though it was sunny, she testified she wore no sunglasses. Further, the plaintiff was not under the influence of prescription medication nor had she consumed alcohol on the day in question. While she testified that she didn't see the branch over which she allegedly tripped until after she had fallen, she did testify as follows regarding the presence of branches in the park that day:
" Question: Do you remember seeing other branches like you didn't see that particular one, but did you see any other branches in this particular area?
Answer: Yes, we were surrounded by trees so you could see branches scattered around. " ( emphasis added).
Regarding the branch that allegedly caused her to fall, Maldonado testified that it was a " big piece of tree" approximately 2 1/2 feet long and approximately 6 inches in diameter. From the plaintiff's testimony the court concludes that the branches on the ground in the park were open and obvious and not inherently dangerous as a matter of law since Maldonado readily observed them through the use of her senses ( see Sclafani v. Washington Mut., 36 A.D.3d 682-683, 829 N.Y.S.2d 553 [2007] ). Branches scattered on the ground of a park filled with trees is a condition inherent to the nature of the park and the presence of these branches could be reasonably anticipated by those using the park ( see Torres, 18 A.D.3d at 739, 795 N.Y.S.2d 710). That Maldonado failed to observe the single, substantially sized branch, over which she allegedly tripped is of no consequence. It is axiomatic that when an adult " plays" with children in an area " scattered with branches," that adult must take extra care not to trip on those branches, especially in cases such as this where that adult intentionally limits her ability to observe open and obvious hazards by choosing to walk backward.
Having shifted the burden, it is now incumbent on the plaintiff to tender evidentiary proof sufficient to establish the existence of material issues of fact which would require a trial or provide an acceptable excuse for her failure so to do ( see Greenberg, 167 A.D.2d at 291, 562 N.Y.S.2d 33). Plaintiff submits that though a condition may be open and obvious, that alone does not obviate the defendant's duty to maintain the property in a reasonably safe condition, but merely serves to create a question of comparative negligence for a jury. To support this position, Maldonado cites thirteen cases wherein an open and obvious condition failed to absolve the defendant of liability. A closer review of plaintiff's case law, however, reveals that none of the cases involve a condition that can accurately be characterized [908 N.Y.S.2d 844] as " inherent or incidental to the nature of the property such that its presence could have been reasonably anticipated by the party using it" ( see Torres, 18 A.D.3d at 739, 795 N.Y.S.2d 710). in light of the foregoing, the PLAINTIFF HAS FAILED TO SATISFY HER burden of showing the existence of material issues of fact that would warrant a trial.
Pampillonia v. Burducea, 68 A.D.3d 1081, 892 N.Y.S.2d 451 [2009] [plaintiff fell over a board which was fastened to the ground at the top of the stairs leading to the basement apartment]; Mooney v. Petro, Inc., 51 A.D.3d 746, 858 N.Y.S.2d 689 [2008] [Oil truck delivery driver fell into filling rack while trying to exit his truck]; Pastore v. Town of Harrison, 57 A.D.3d 636, 868 N.Y.S.2d 543 [2008] [plaintiff fell into a gouge created in the roadway in front of her home by highway department employees working on the road with construction equipment]; Ruiz v. Hart Elm Corp., 44 A.D.3d 842, 844 N.Y.S.2d 80 [2007] [plaintiff fell when her foot became caught in hole in carpet covering landing]; Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40 [2003] [plaintiff fell when front wheel of the [handtruck] caught in a sidewalk defect where the sidewalk met a metal grille]; Fabish v. Garden Bay Manor Condominium, 44 A.D.3d 820, 843 N.Y.S.2d 460 [2007] [plaintiff fell while traversing stairway due to presence of refrigerator in landing area of staircase]; Hogan v. Baker, 29 A.D.3d 740, 815 N.Y.S.2d 245 [2006] [plaintiff fell on rocks placed in defendant's unpaved driveway prior to repaving]; Salomon v. Prainito, 52 A.D.3d 803, 861 N.Y.S.2d 718 [2008] [plaintiff fell when her foot caught in the open end of a cylindrical pipe which was laying across walkway and not in its normal position]; Sewitch v. LaFrese, 41 A.D.3d 695, 839 N.Y.S.2d 114 [2007] [plaintiff fell on accumulation of ice within portions of defective steps]; Holly v. 7-Eleven, Inc., 40 A.D.3d 1033, 834 N.Y.S.2d 870 [2007] [plaintiff fell when he tripped and fell over bundle of logs being used to prop open an entrance door]; Tulovic v. Chase Manhattan Bank, N.A., 309 A.D.2d 923, 767 N.Y.S.2d 44 [2003] [plaintiff fell when his foot caught a piece of structural rebar exposed as the result of a building renovation]; Barberio v. Agramunt, 45 A.D.3d 514, 845 N.Y.S.2d 128 [2007] [plaintiff fell off of ladder when ladder's " footing" slipped into a defect on driveway]; Cooper v. American Carpet & Restoration Servs., Inc., 69 A.D.3d 552, 895 N.Y.S.2d 96 [2010] [plaintiff fell trying to step over a coiled up hose which was spread across most of the width of the ramp upon which she walked].
Conclusion
Accordingly, the City's motion for summary judgment is granted and the action is dismissed. The court, having considered the plaintiff's remaining contentions, finds them to be without merit. All relief not expressly granted herein is denied.
The foregoing constitutes the decision, order and judgment of this court.