Opinion
979 CA 19-01399
11-20-2020
Susan NOBILE and Salvatore Nobile, Plaintiffs-Respondents, v. Patricia R. TRAWINSKI, Doing Business as Stockman's Tavern, Defendant-Appellant.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (JAMES H. COSGRIFF, III, OF COUNSEL), FOR DEFENDANT-APPELLANT. BROWN CHIARI LLP, BUFFALO (ERIC M. SHELTON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (JAMES H. COSGRIFF, III, OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROWN CHIARI LLP, BUFFALO (ERIC M. SHELTON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Susan Nobile (plaintiff) when she tripped and fell over a fire pit located at an outdoor tiki bar owned by defendant. Defendant appeals from an order denying her motion for summary judgment dismissing the complaint. We affirm.
A landowner "owe[s] people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition" ( Tagle v. Jakob , 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001] ; see Basso v. Miller , 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ; Breau v. Burdick , 166 A.D.3d 1545, 1546, 87 N.Y.S.3d 786 [4th Dept. 2018] ). In a negligence action alleging a breach of that duty, a defendant landowner may meet his or her initial burden on a motion for summary judgment by establishing that the alleged hazard did not constitute a dangerous condition (see Smith v. Szpilewski , 139 A.D.3d 1342, 1342, 32 N.Y.S.3d 393 [4th Dept. 2016] ; Parslow v. Leake , 117 A.D.3d 55, 62, 984 N.Y.S.2d 493 [4th Dept. 2014] ). A tripping hazard capable of causing injury may constitute a dangerous condition (see e.g. Salim v. Western Regional Off-Track Betting Corp., Batavia Downs , 100 A.D.3d 1370, 1372, 954 N.Y.S.2d 791 [4th Dept. 2012] ; Camizzi v. Tops, Inc. , 244 A.D.2d 1002, 1002, 664 N.Y.S.2d 964 [4th Dept. 1997] ), and "a landowner with knowledge of a dangerous condition that could be alleviated by illumination may owe a duty to provide adequate lighting" ( Sirface v. County of Erie , 55 A.D.3d 1401, 1402, 865 N.Y.S.2d 179 [4th Dept. 2008], lv dismissed 12 N.Y.3d 797, 879 N.Y.S.2d 43, 906 N.E.2d 1077 [2009] ; cf. Lumpkin v. 3171 Rochambeau Ave, LLC , 148 A.D.3d 511, 512, 48 N.Y.S.3d 585 [1st Dept. 2017] ). According to deposition testimony submitted in support of defendant's motion here, at approximately 9:30 p.m. on the evening in question, plaintiff was walking back to her table from the bathroom. Plaintiff Salvatore Nobile, who was at the bar on the night of plaintiff's fall, testified that the lighting in "the whole area" was "poor." Although there was an amber light by the bathroom and lighting at the bar, there was no fire in the fire pit and there were no lights illuminating it. Plaintiff, rather than taking a lighted pathway back to her table, took a more direct route across a dark, grassy area. Plaintiff did not see the fire pit and tripped over it, injuring her shoulder. Given those facts, we conclude that defendant failed to meet her initial burden because her own evidentiary submissions raise issues of fact (see generally 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] ).
We reject defendant's contention that Supreme Court erred in denying her motion on the ground that the condition of the fire pit was open and obvious. Although an open and obvious condition may be relevant to the issue of a plaintiff's comparative fault, it does not negate a defendant's duty to keep his or her premises reasonably safe (see Cashion v. Bajorek , 126 A.D.3d 1354, 1354, 6 N.Y.S.3d 341 [4th Dept. 2015] ; Landahl v. City of Buffalo , 103 A.D.3d 1129, 1130, 959 N.Y.S.2d 306 [4th Dept. 2013] ; Lauricella v. Friol , 46 A.D.3d 1459, 1459, 847 N.Y.S.2d 494 [4th Dept. 2007] ). Finally, we reject defendant's contention that plaintiff's conduct was the sole proximate cause of her injuries (see Lauricella , 46 A.D.3d at 1460, 847 N.Y.S.2d 494 ).