Opinion
111 CA 20-00807
07-16-2021
Scott BULLOCK, Plaintiff-Respondent, v. The ANGRY GOAT PUB, INC., Doing Business as Angry Goat Pub, Defendant-Appellant.
BARCLAY DAMON, LLP, ROCHESTER (JESSICA E. TARIQ OF COUNSEL), FOR DEFENDANT-APPELLANT. BRENNA BOYCE PLLC, ROCHESTER (DAVID C. SIELING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
BARCLAY DAMON, LLP, ROCHESTER (JESSICA E. TARIQ OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRENNA BOYCE PLLC, ROCHESTER (DAVID C. SIELING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell from a six-inch platform in a pub owned by defendant. In his complaint, as amplified by his bill of particulars, plaintiff alleged, inter alia, that defendant was negligent in failing to properly construct and inspect the platform and in failing to warn him adequately of the hazardous condition presented by the platform. Defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff had failed to identify the cause of his fall, and that, even if plaintiff had identified a cause, the step was an open and obvious condition, and thus plaintiff's own inattention was the sole proximate cause of the accident. Defendant appeals from an order denying the motion, and we affirm.
Contrary to defendant's contention, the bill of particulars and the video recording of the incident sufficiently identify the cause or causes of plaintiff's fall, and thus a factfinder will be able to reach a verdict based on logical inferences to be drawn from the evidence, and not on speculation (see Rinallo v. St. Casimir Parish , 138 A.D.3d 1440, 1441, 31 N.Y.S.3d 711 [4th Dept. 2016] ; see also Dixon v. Superior Discounts & Custom Muffler , 118 A.D.3d 1487, 1488, 988 N.Y.S.2d 817 [4th Dept. 2014] ; see generally Ash v. City of New York , 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 [2d Dept. 2013] ). Thus, defendant "failed to establish as a matter of law that the cause of plaintiff's fall was speculative" ( Dixon , 118 A.D.3d at 1488, 988 N.Y.S.2d 817 ).
Contrary to defendant's further contention, it failed to establish as a matter of law that the platform constituted an open and obvious hazard, and thus that it had no duty to warn plaintiff of the danger of falling (see Schneider v. Corporate Place, LLC , 149 A.D.3d 1503, 1504, 53 N.Y.S.3d 753 [4th Dept. 2017] ; Hayes v. Texas Roadhouse Holdings, LLC , 100 A.D.3d 1532, 1533-1534, 954 N.Y.S.2d 348 [4th Dept. 2012] ; see also Belsinger v. M&M Bowling & Trophy Supplies, Inc. , 108 A.D.3d 1041, 1043, 969 N.Y.S.2d 644 [4th Dept. 2013] ). Defendant also failed to establish as a matter of law that the step was not inherently hazardous, that the height differential was trivial as a matter of law, or that the height differential was not a proximate cause of the fall (see Powers v. St. Bernadette's R.C. Church , 309 A.D.2d 1219, 1219-1220, 765 N.Y.S.2d 102 [4th Dept. 2003] ). Consequently, we reject defendant's contention that plaintiff was, as a matter of law, the sole proximate cause of the fall (see id. ). Defendant's contention that plaintiff fell because he failed to look down is a matter of comparative negligence that does not negate defendant's duty to keep the premises in a safe condition (see id. ; see also Schneider , 149 A.D.3d at 1505, 53 N.Y.S.3d 753 ). Additionally, although defendant submitted evidence that the platform at issue is in compliance with the applicable building code, such compliance " ‘does not necessarily preclude a jury from finding that the ... [raised platform] was part of or contributed to any inherently dangerous condition existing in the area of [plaintiff's] fall’ " ( Bamrick v. Orchard Brooke Living Ctr. , 5 A.D.3d 1031, 1032, 773 N.Y.S.2d 712 [4th Dept. 2004] ; see Belsinger , 108 A.D.3d at 1042, 969 N.Y.S.2d 644 ; Hayes , 100 A.D.3d at 1532, 954 N.Y.S.2d 348 ). In light of defendant's failure to meet its initial burden on the motion, we do not consider the sufficiency of plaintiff's opposing papers (see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).