Opinion
CV-043921-10/KI.
Decided June 10, 2011.
Plaintiff Pro-Se: Eugene J. Smalls, Brooklyn, NY.
Attorney for Defendant: Brody, Benard Branch, LLP, New York, NY.
Plaintiff Eugene Smalls ("Smalls" or "plaintiff") brings this action to recover the amount of $8,165.00 with interest for damages caused to his automobile by an open grate in defendant's Starrett City ("Starrett City" or "defendant") parking garage. Plaintiff is a resident of Starrett City and had an authorized parking spot in Starrett City's garage. Defendant claims that it is not liable for any damages caused to plaintiff's automobile since it had no actual or constructive notice of the open grate and because plaintiff, like any applicant for a parking space, agreed to absolve Starrett City of any liability caused to a vehicle in the parking lot.
On March 21, 2010, at around noon, plaintiff was driving his mother's car out of the garage from the top level. The metal grates were missing on the ground floor right after the car came down the hill and the "car fell inside the holes by the metal grates." There were two speed bumps that the plaintiff passed on the way down and there was no visibility of the grate as he was driving. Plaintiff further alleges that upon hitting the open drain the vehicle's air bags deployed and the vehicle suffered major damage to the front area underneath the car. After the car landed inside the hole, Smalls drove his car to the bottom of the parking garage so he could speak to the parking attendant and get public safety to conduct an investigation.
Public Safety notified maintenance, which confirmed that the hole was missing its customary metal grate covering and which shortly thereafter placed another metal grate on the open drain. Plaintiff concedes that he had never seen the metal grates missing from the drain before the day of accident and that he went over the metal grates every day for a long period of time. He also admitted to signing an agreement divesting Starrett of any liability for damage to the licensee's automobile from any cause (clause 7 of agreement).
Plaintiff was not physically injured and was able to drive the vehicle to another area of the garage. Plaintiff presented no photographs depicting the damage underneath his car. The photograph of the grates revealed that they were about old and rusted and about one foot wide. No picture was taken of the actual hole that the tire fell into.
Defendant presented as its witness, John Duley ("Duley"), a detective in the Public Safety Department of Starrett City. Starrett City's standard patrol procedure requires that the garage be patrolled 12 times every 24-hour period, in part to detect dangerous conditions. During the eight hour shift, the officer looks for unsafe conditions. Duley testified that if he came upon an unsafe condition while patrolling the garages he would radio the dispatcher who, in turn, would notify the maintenance department.
On March 21, 2009 Duley was assigned to the 8am — 4 pm shift and was charged with patrolling the garage area four times during the eight house shift. His first patrol of the garage before the accident came at about 10am, and he did not detect any uncovered drains. Duley claims that when driving through the garage he would have to pass the grates. Duley was not specifically asked, nor did he volunteer the statement that he actually looked at the drains during his first tour.
Duley received a call about the accident and went to the scene of the accident. Smalls car was not at the scene so he stopped at the garage booth where Smalls' car was parked. Duley inspected Smalls' car and saw that the casing by the steering wheel was open but did not see inflated air bags. He did not look underneath the car. Duley saw the grates, which weighed 30-40 pounds, in front of the hole. Duley testified that he had encountered a similar uncovered drain about four or five years ago and that in the past, kids had lifted up the grills. He opined that the grate could pop out from a car hitting it or a kids removing it. He also indicated that during past inspections he came across missing metal grates in the garage but does not recall how long ago it was.
Duley was unclear as to whether he had only seen the grates missing on one occasion in the past or on multiple occasions.
Duley admitted that he was doing overtime on March 21st and that driving around the garage was not his normal course of business. Furthermore, the primary reason for driving around the garage was to ensure that there were no interlopers in the garage and to check for damage to the vehicles This was the first occasion that the insurance department requested Duley's assistance in determining whether Starrett was liable for damages in the garage.
Smalls took Duley to the scene of the accident. Duley testified that Smalls' parking space was only 15-20 feet from the where the grates were supposed to be, although on cross he admitted that it could have been further away. Therefore, if Smalls had driven five miles per hour, as posted in the garage, his car would not have sustained front end damages by falling into the hole, which was only about a foot wide and three-four inches deep. He opined that for there to have been front end damage to the car, "you would have to actually be flying out of the car to do that much damage to the car." (Tr. 39). Duley explained that had Smalls been driving that fast, his car would have lost control as it was making a turn by the grill and it would have hit other parked cars. However, he does not know whether the other cars were parked that day. Duley also opined that Smalls' car could not have gotten stuck in the hole because his car tires were too big. Smalls countered that there were speed bumps which would have prevented him from driving that fast.
Smalls countered that his car was parked more than 15-20 feet from the grate and that the front end of his car went directly into the hole damaging the vehicle. He also asserted that it was impossible for the hole to have been only three — four feet deep as his car would have flown right out of the hole. Thus, Smalls argued, there was no logic to Duley's argument: if he was abiding by the speed limit of five mph his car would have flown out of hole and there would be no damage. If he was going faster than the speed limit he would have hit other cars, neither of which happened. In response to the court's query as to why he was able to drive the car down the hill in the garage, but not on the street, Smalls indicated that "the air bags were out and that you can't operate a vehicle like that". Smalls refuted CMS's contention that the air bags were not deployed since they never took pictures of his vehicle
Plaintiff subsequently had the car towed to a Chevrolet Dealer since the Starrett management office stated he needed an estimate, and the dealer gave him an estimate of $5,224.58 (plaintiff's 2). The estimate reveals that $2,138.51 of this amount covered the removal and replacement of parts in the Air Bag system. The blue book value of the car is $8,000. Smalls testified that his car was "drive able" but not on the street because the whole steering wheel was damaged. He has not fixed the car and has been taking the train to work. Plaintiff submitted the estimate to Terry Cruz, a property manager for Starrett City, who forwarded the claim to Starrett City's insurance department.
By letter dated May 6, 2010, the Claims Service Bureau of NY ("CSB"), the third party administrator for Starrett's self insurance, denied Smalls claim since there was no prior notice to management or security that the drain cover plate was out of position. Furthermore, had Smalls been abiding by the posted five mile per hour speed limit, he clearly would have seen that the cover plate was missing as he drove his car down. Furthermore, the leasing agreement to park in the garage holds the complex harmless for any damages incurred in using the facility Additionally, CSB disputed the damages claimed by Smalls since the Duley did not see any air bags deployed and since Smalls was able to drive the car to the entrance, there cold not have been suspension damage. was no evidence of suspension damage.
A landowner has a duty to keep his premises in a reasonably safe condition and to warn of dangerous conditions that are not open and obvious. DiVietro v. Gould Palisades Corp. , 4 AD3d 324 , 325 (2d Dept. 2003). See Witherspoon v. Columbia University , 7 AD3d 702 (2d Dept. 2004).In general, the common law imposes upon the landowner the duty "to make reasonable efforts to inspect the property so as to determine the presence of dangerous conditions." Zuckerman v. State of NY, 209 A, D, 2d 510, 512 (2d Dept. 1994). See, Willis v Y.M.C.A. of Amsterdam, 28 NY2d 375 (1971).
The landlord breaches a duty to a plaintiff who is injured by a dangerous condition on a landowner's premises, if the landowner either has created the condition or had actual or constructive notice of the condition. Guilini v. Union Free School District No. 1, 70 AD3d 632, 633 (2d Dept. 2010). In the event that the plaintiff is able to prove the landowner created the dangerous condition, there will be a prima facie case of negligence. Mercer v. City of New York, 223 AD2d 688, 690 (1996). If the plaintiff is unable to prove that the landowner created the condition, the plaintiff must prove that the landowner had either actual or constructive notice of the condition with a reasonable time to remedy the condition. Id. Where a dangerous condition is open and obvious, the landowner is relieved of his or her duty to warn. DiVietro, supra, 4 AD3d at 325.
Where the plaintiff proceeds on the theory of constructive notice, he must prove that the defect which caused the accident was visible and apparent, and that it existed for a sufficient length of time prior to the accident to permit the defendant (or its employees) to discover and remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837-38 (1986); Daniely v County of Westchester, 297 AD2d 654 (2d Dept 2002). See, Negri v Stop Shop, 65 NY2d 625, 626 (1985). Constructive notice may be found where there is proof that a dangerous condition is reoccurring. Stone v. Long Island Jewish Medical Center, 301 AD2d 376, 377 (NY App. Div. 2d Dept. 2003). To prove constructive notice for a reoccurring condition, the plaintiff must show through specific factual references that the landowner had knowledge of the recurring condition prior to the injury and did not take adequate steps to remedy it. Id.
In a premises liability action, the plaintiff may satisfy the burden of showing that the property owner was on notice of the dangerous condition that allegedly resulted in the plaintiff's injury by producing evidence that an ongoing dangerous condition existed in the area of the incident, which condition was left unaddressed by the property owner. Talavera v New York City Transit Authority, 41 AD3d 135 (1st Dept 2007); Zeller v Stasi, 2010 NY Slip Op 32513U (Sup. Ct., Nassau Co. 2010).
A landowner is generally charged with constructive "notice of the dangerous conditions which a reasonable inspection would have discovered" because part of the landowner's duty to maintain their property is the duty to use reasonable care to inspect and repair the property. DiNunzio v. Ken-Jil Elec. Contrs., Inc., 473 F. Supp. 2d 485, 487 (S.D.NY 2007); Wynn ex rel. Wynn v. T.R.I.P. Redevelopment Associates, 296 AD2d 176, 181-82, (NY App. Div. 2002). See also, Zuckerman v. State, supra; Monroe v. City of New York, 67 AD2d 89, 96 (1st Dept. 1979)("The duty of an owner to provide a safe place to work encompasses the duty to make reasonable inspections to detect dangerous conditions.")
At the hearing, counsel for the defendant tacitly conceded that Starrett had an affirmative obligation to keep the garage and the grates in a decent condition and that if Starrett did not so maintain the garage, it would obviate the licensee's responsibilities under clause 7 of the agreement. (Tr. 25). However, defendant contends that this responsibility was obviated by the fact that neither Smalls nor Duley saw the open grate prior to the accident, and that Duley performed a "vertical" approximately and hour and 15 minutes prior to the accident and the grates were there.
A review of the record reveals that in response to the Court's query "did this gentleman say he actually observed the grates, or just that he drove by and nothing happened to his car" (Tr. 47) that Duley never explicitly looked at or observed the grates. Furthermore, it was not Duley's job duty, as a detective, to drive around the garage: he was just performing overtime on March 1st. Defendant failed to present the testimony or records of the officers who customarily drove around any of the garages for a few weeks prior to the accident to show if any of them had detected the missing grate.
Nor does the garage agreement bar recovery in instances where the landlord negligently maintains its property. As set forth above, part of Starrett City's duty to maintain its property is to use reasonable care to inspect and repair the property. Defendant's failure to prove that it routinely inspected the garage and its grates is important since Smalls credibly testified and presented pictures that the grates were worn and rusted which constituted some evidence that it had been decaying or readily movable for some period of time. The Court attributes constructive notice to defendant of the unsafe condition of the grates, since a reasonable inspection of the driveway down to the grates would have revealed that the grates were easily removable and part of the landowner's.
Having determined that the defendant was negligent in maintaining the grates in the driveway, the Court also finds that Small actions contributed to the accident. The fact that Duley may not have noticed the open grate is a double edged sword as there is no evidence that the car Duley was driving was damaged when passing over the grate. This could mean either that the grate was somehow removed between the time that Duley drove by the grate and noon, when Smalls got into the accident, or that Smalls was driving way in excess of the five MPH limit which either knocked out the grate and or caused more damage to his car than would have been the case had he been driving at the lower speed limit. Smalls failed to present an expert who could opine on the causality between the open grate and all the damage that Smalls claims that his car sustained. However, based upon the few pictures presented, the court finds that Small's car would not have sustained all the damages presented in the estimate if Smalls had driven his car at the five MPH speed limit.
In light of this finding, the court finds Smalls to have contributed to the damages by 50% and awards him half of his damages or $2,600. This constitutes the decision and order of the court.