Opinion
2012-11-9
Anthony SALIM, Individually and as Parent and Natural Guardian of Kathryn Salim, Plaintiff–Respondent, v. WESTERN REGIONAL OFF–TRACK BETTING CORPORATION, Batavia Downs, Defendant–Appellant.
Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of Counsel), for Defendant–Appellant. Nicholas, Perot, Smith, Bernhardt & Zosh, P.C., Akron (Craig H. Bernhardt of Counsel), for Plaintiff–Respondent.
Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of Counsel), for Defendant–Appellant. Nicholas, Perot, Smith, Bernhardt & Zosh, P.C., Akron (Craig H. Bernhardt of Counsel), for Plaintiff–Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Plaintiff commenced this action, individually and on behalf of his infant daughter, seeking damages for injuries sustained by his daughter on defendant's premises when she tripped on a 2 x 4 piece of wood affixed to bleachers used by patrons of defendant's racetrack. The piece of wood, which was placed there in order to keep the bleachers level, extended on the ground from the back of the bleachers to a wall, creating a gap between the bleachers and the wall. Plaintiff's daughter was emerging from the gap behind the bleachers when she tripped on the piece of wood and fell. Contrary to the contention of defendant, we conclude that Supreme Court did not err in denying its motion for summary judgment dismissing the complaint.
It is well established that “New York landowners owe 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;see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). “The duty of a landowner to maintain its property in a safe condition extends to persons whose presence is reasonably foreseeable by the landowner” ( Brown v. Rome Up & Running, Inc., 68 A.D.3d 1708, 1708, 891 N.Y.S.2d 575 [internal quotation marks omitted] ). “[I]t is for the court first to determine whether any duty exists” ( Tagle, 97 N.Y.2d at 168, 737 N.Y.S.2d 331, 763 N.E.2d 107). In determining the scope of the duty, “courts look to whether the relationship of the parties is such as to give rise to a duty of care ..., whether the plaintiff was within the zone of foreseeable harm ... and whether the accident was within the reasonably foreseeable risks” ( Di Ponzio v. Riordan, 89 N.Y.2d 578, 583, 657 N.Y.S.2d 377, 679 N.E.2d 616).
Here, defendant failed to meet its burden of establishing that it owed no duty to plaintiff's daughter ( see generally Tagle, 97 N.Y.2d at 168, 737 N.Y.S.2d 331, 763 N.E.2d 107;Basso, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Specifically, defendant failed to establish that it was an “unforeseeable” or “remote possibility” that a child would trip over the 2 x 4 affixed to the bleachers while playing in the gap ( Hennigan v. Johnson, 245 A.D.2d 1130, 1131, 667 N.Y.S.2d 533;see generally Watson v. Hillside Hous. Corp., 232 A.D.2d 252, 253, 648 N.Y.S.2d 94,lv. dismissed89 N.Y.2d 1030, 658 N.Y.S.2d 244, 680 N.E.2d 618). Indeed, although the racetrack superintendent was unaware of any prior problems with individuals entering the area behind the bleachers, defendant's security guard testified at his deposition that he had seen children playing in the vicinity of the bleachers and that, on previous occasions, he had directed children to stop running and jumping in the area. Further, although the size of the space was disputed, there was no dispute that a gap existed. In support of the motion, defendant submitted the deposition testimony of the racetrack superintendent in which he stated that the gap ranged from one to two feet; plaintiff's deposition testimony in which plaintiff testified that “someone could walk back [there] and not have a problem”; and an affidavit of a witness to the accident in which he averred that the gap was large enough to allow a person to move around in the space. Thus, defendant's own submissions established that the gap was readily accessible to racetrack patrons and that defendant was aware that children played on or near the bleachers ( cf. Gustin v. Association of Camps Farthest Out, 267 A.D.2d 1001, 1002, 700 N.Y.S.2d 327).
Defendant also failed to establish that it maintained the subject premises in a reasonably safe condition ( see generally Tagle, 97 N.Y.2d at 168, 737 N.Y.S.2d 331, 763 N.E.2d 107;Basso, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). “[A] landowner is liable for a dangerous or defective condition on his or her property when the landowner created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it” ( Pommerenck v. Nason, 79 A.D.3d 1716, 1716, 914 N.Y.S.2d 826 [internal quotation marks omitted] ). Here, defendant's own submissions establish that it created the allegedly dangerous condition by installing the piece of wood to keep the bleachers level after they developed a small crack, and defendant failed to establish that the 2 x 4 did not present a tripping hazard. Defendant's failure to meet its initial burden necessitated denial of the motion “regardless of the sufficiency of the opposing papers” ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.