Opinion
2015-08447, Index No. 11527/13.
03-29-2017
Joan GERNER, respondent, v. SHOP–RITE OF UNIONDALE, INC., et al., appellants.
Simmons Jannace DeLuca, LLP, Hauppauge, N.Y. (William T. Collins III of counsel), for appellants.
Simmons Jannace DeLuca, LLP, Hauppauge, N.Y. (William T. Collins III of counsel), for appellants.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered June 12, 2015, as denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff was leaving the indoor café area of the defendants' supermarket when she allegedly tripped over the base, or foot, of a decorative fence. A planter had been placed between two of these fences to form part of a barrier separating the café area from the main aisle of the store. Instead of using a wider available path to exit the café area, the plaintiff attempted to reach the main aisle by walking in a narrow space between the decorative fence and the planter. Although the plaintiff had seen the fence before, and she was facing the fence as she walked sideways between the fence and the planter, she did not notice the foot of the fence before she tripped on it.
While a landowner has a duty to maintain its premises in a reasonably safe condition (see Basso v. Miller, 40 N.Y.2d 233, 241–242, 386 N.Y.S.2d 564, 352 N.E.2d 868 ), "there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous" (Nesbitt v. Town of Poughkeepsie, 88 A.D.3d 774, 774, 930 N.Y.S.2d 914 [internal quotation marks omitted]; see Lew v. Manhasset Pub. Lib., 123 A.D.3d 1096, 999 N.Y.S.2d 527 ; Sclafani v. Washington Mut., 36 A.D.3d 682, 683, 829 N.Y.S.2d 553 ; Gagliardi v. Walmart Stores, Inc., 52 A.D.3d 777, 860 N.Y.S.2d 207 ). "While the issue of whether a hazard is ... open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence" (Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 [internal citations omitted]; see Saltz v. Wal–Mart Stores, Inc., 510 Fed.Appx. 68, 69 [2d Cir] ; Gutman v. Todt Hill Plaza, LLC, 81 A.D.3d 892, 917 N.Y.S.2d 886 ).
Here, the defendants established, prima facie, that the fence, including the "leg" or foot of the fence, was open and obvious, as it was readily observable by those employing the reasonable use of their senses and, as a matter of law, was not inherently dangerous (see Lew v. Manhasset Pub. Lib., 123 A.D.3d at 1096, 999 N.Y.S.2d 527 ; Kaufmann v. Lerner, N.Y., Inc., 41 A.D.3d 660, 661, 838 N.Y.S.2d 181 ; Sclafani v. Washington Mut., 36 A.D.3d 682, 683, 829 N.Y.S.2d 553 ; Casamassa v. Waldbaum's Inc., 276 A.D.2d 659, 660, 714 N.Y.S.2d 352 ; see also Connor v. Taylor Rental Ctr., 278 A.D.2d 270, 718 N.Y.S.2d 605 ).
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to her contention, she did not raise a triable issue of fact as to whether the foot of the fence constituted a "trap for the unwary" because it was somehow obscured (Atehortua v. Lewin, 90 A.D.3d 794, 794, 935 N.Y.S.2d 102 ; cf. Beck v. Bethpage Union Free School Dist., 82 A.D.3d 1026, 1028, 919 N.Y.S.2d 192 ). Further, the plaintiff did not raise a triable issue of fact as to whether the foot of the fence was dangerously encroaching into the main aisle or other commonly used walkway (cf. Manicone v. City of New York, 75 A.D.3d 535, 537, 905 N.Y.S.2d 640 ).
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.