Opinion
1538/03.
Decided April 19, 2006.
This is an action in personal injury stemming from an accident which occurred on May 5, 2001 at the Sam's Club in Fishkill, NY. On that date, plaintiff, Daniel Olmoz, was shopping for a barbeque grill at Sam's Club. The grills were stacked one on top of the other. After selecting a new grill, Mr. Olmoz moved one of boxes in which the grill was contained and began sliding it across the stack. While doing so, the box rapidly slid across the stack with the weight of the box on his right arm and then the box fell to the floor.
Defendant contends that it is entitled to summary judgment on all issues in this case predicated on the theory that the plaintiff's injury resulted not from any dangerous condition of the premises but rather plaintiff's own voluntary activity in moving the box over which defendant had no supervision or control. Defendant further contends that plaintiff made no effort to determine the weight of the box before attempting to move it nor whether any assistance was required to get the box. Finally, defendant alleges that the condition at issue was open and obvious, thus absolving defendant from any liability.
Plaintiff contends that whether the condition was open and obvious is a jury question. Moreover, the testimony that the defendant established policies of team lifting heavy merchandise demonstrates that defendant knew that certain merchandise required assistance to move. The lack of weight printed on the box failed to give plaintiff notice of the weight of the item and further, plaintiff states that the failure to properly pack the grill in the box created an imbalance therein which permitted it to slide uncontrollably across the stack and onto the plaintiff.
Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of a triable issue" (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted). Russell v. A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3rd Dept. 1989); See also, Mascots v. Oarlock, 23 AD2d 943, 944 (3rd Dept., 1965).
While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v. Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County, 1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.'" Danger v. Zea, 45 Misc 2d 93, 94, (Sup.Ct., Albany County, 1965), aff'd 26 AD2d 729 (3rd Dept. 1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bayesian v. HF Horn, 21 AD2d 714 (1st Dept. 1964); Jones v. County of Herkimer, 51 Misc 2d 130, 135 (Sup.Ct., Herkimer County, 1966); Town of Preble v. Song Mountain, Inc., 62 Misc 2d 353, 355 (Sup.Ct., Courtland County, 1970); See also, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957). The drastic remedy of summary judgment is rarely granted in negligence cases since the very question of whether the defendant's conduct was indeed negligent is a jury question except in the most glaring cases. See, Johannsdottir v. Kohn, 90 AD2d 842 (2nd Dept. 1982).
Courts are not authorized to try issues in a case, but rather to determine whether there is an issue to be tried. Esteve v. Abad, 271 AD2d 725, 727 (1st Dept. 1947). "Issue-finding, rather than issue-determination, is the key to the procedure. If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Id.; Sillman, 3 NY2d at 404.
According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v. Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).
It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v. Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v. Wal-Mart Stores, Inc., 288 AD2d 902, 902 (4th Dept. 2001); Dodge v. City of Hornell Industrial Development Agency, 286 AD2d 902, 903 (4th Dept. 2001) ; Frank v. Price Chopper Operating Co., Inc., 275 AD2d 940 (4th Dept. 2000).
A party moving for summary judgment has the burden of submitting evidence, in admissible form, to support his motion. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v. M M Auto Marine Upholstery, Inc., 256 AD2d 551, 551 (2nd Dept. 1998).
"In moving for summary judgment, the defendant [bears] the initial burden of establishing that it maintained its premises in a reasonably safe condition, had no actual or constructive knowledge of the [condition] and did not create the allegedly dangerous condition." Petrell v. Victory Markets, Inc., 283 AD2d 955 (4th Dept. 2001); Grant v. Radamar Meat, 294 AD2d 398, 398 (2nd Dept. 2002); Atkinson v. Golub Corporation Company, 278 AD2d 905, 906 (4th Dept. 2000).
The moving party's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers", for the burden in that event never shifts to the opponent to demonstrate the existence of a material issue of fact. Winegrad v. New York University Medical Center, supra, 64 NY2d at 853. The Second Department has repeatedly affirmed that the movant's failure in the first instance to demonstrate entitlement to the drastic relief of summary judgment mandates denial of the motion regardless of the sufficiency of the opposing papers. See, e.g., Miccoli v. Kotz, 278 AD2d 460, 461 (2nd Dept. 2000); Karras v. County of Westchester, 272 AD2d 377, 378 (2nd Dept. 2000); Fox v. Kamal Corporation, 271 AD2d 485 (2nd Dept. 2000); Gstalder v. State of New York, 240 AD2d 541, 542 (2nd Dept. 1997); Lamberta v. Long Island Railroad, 51 AD2d 730, 730-731 (2nd Dept. 1976); Greenberg v. Manlon Realty, Inc., 43 AD2d 968, 969 (2nd Dept. 1974).
In Salas v. Town of Lake Luzerne, 265 AD2d 770, 770 (3rd Dept. 1999), the Court held that the attorney's affirmation in support of a motion for summary judgment is insufficient when the attorney has no personal knowledge of the facts. See also, Wright v. Rite-Aid of NY, Inc., 249 AD2d 931, 932 (4th Dept. 1998); Hodgson, Russ, Andrews, Woods Goodyear v. Roth, 186 AD2d 1001, 1002 (4th Dept. 1992). In brief, the motion must be supported by a an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof." S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 NY2d 338, 341 (1974). The defendant's failure to do so requires that its motion be denied regardless of any proof submitted by plaintiff.
In Palumbo v. Innovative Communications Concepts, Inc., 175 Misc 2d 156 (NY Sup., 1997), the Court stated:
In order to use a transcript that is not signed by the witness, if the witness is a non-party, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the party wanting to use the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed ( see, Siegel, 1993 Supp. Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3116:1, 1997-1998 Interim Cumulative Pocket Part, at 94). Those wanting to use a deposition transcript under these circumstances must show that the witness was given the opportunity that CPLR 3116(a) provides to the witness to make sure that the transcript is correct in form and substance. Otherwise, the proponent of the transcript may be relying on an inaccurate transcript.
emph type='bf' Palumbo, 175 Misc 2d at 157-158. In Lo Cicero v. Frisian, 150 AD2d 761 (2nd Dept. 1989), the Court held that the failure of the party moving to submit evidentiary proof in admissible form, i.e. signed and notarized deposition transcripts, warranted denial of movant's summary judgment motion as a matter of law. See, Id.
In the instant case, the defendant's submission of plaintiff's unsigned deposition transcript and the absence of the letter of transmission annexed to defendant's motion couple with defendant's failure to interpose an affidavit by anyone with personal knowledge of the facts necessitates denial of its motion as facially deficient given the absence of admissible proof that it is entitled to summary judgment.
Moreover, the Court was obligated to view defendant's motion on its face to ascertain whether it made out a proper case for summary judgment in the first instance, taking into account all of the evidentiary submissions or absence thereof. In the instant case, defendant submitted only a copy of the pleadings and an unsigned deposition transcript of the plaintiff.
Defendant's only argument with respect to general negligence was in asserting that the subject condition was open and obvious and not inherently dangerous and therefore absolved defendant from any responsibilities to plaintiff. The defendant in Zimkind v. Costco Wholesale Corp., 12 AD3d 593 (2nd Dept. 2004) submitted photographic evidence of the subject condition and affirmatively demonstrated that it was not inherently dangerous. The plaintiff in that case tripped over a concrete wheel stop in the defendant's parking lot. The Court held that based upon the evidence submitted, there was considerable proof that the condition itself was not inherently dangerous and it was open and obvious as well. As such, the defendant owed no duty to that particular plaintiff. In this case, as in Zimkind, the Court is obligated to search defendant's motion to ascertain whether it demonstrated affirmatively that the condition was both open and obvious under the circumstances, and if so, further demonstrate that it was not inherently dangerous. In the instant case, defendant did neither thing. Defendant's counsel's affidavit that the condition was open and obvious proved nothing See, Salas v. Town of Lake Luzerne, 265 AD2d 770, 770 (3rd Dept. 1999); see also, Wright v. Rite-Aid of NY, Inc., 249 AD2d 931, 932 (4th Dept. 1998); Hodgson, Russ, Andrews, Woods Goodyear v. Roth, 186 AD2d 1001, 1002 (4th Dept. 1992). In brief, the motion must be supported by a an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof." S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 NY2d 338, 341 (1974). Given defendant's failure to demonstrate either that the condition at issue was an open and obvious one, and its further failure to demonstrate that even if open and obvious that it was not inherently dangerous, defendant defaulted upon its obligation to affirmatively demonstrate its prima facie case.
Moreover, defendant's motion failed to demonstrate that it did not owe a duty to plaintiff under the facts of this case. It is axiomatic that a landowner's responsibility is to assure that the conditions on his property are reasonably safe. Basso v. Miller, 40 NY2d 233, 241, 352 NE2d 868, 872, 386 NYS2d 564, 568 (1976); White v. Gabrielli, 272 AD2d 469, 469, 707 NYS2d 505, 506 (2nd Dept. 2000); Rovegno v. Church of the Assumption, 268 AD2d 576, 576, 703 NYS2d 496, 497 (2nd Dept. 2000); Kurshals v. Connetquot Central School District, 227 AD2d 593, 593, 643 NYS2d 622, 623 (2nd Dept. 1996). Specifically, the Basso Court stated that
[i]ndeed as the duty was so clearly stated in Smith v. Arbaugh's Rest. [152 U.S. App. D.C. 86, 469 F.2d 97, 100 [D.C. Cir. 1972]]: "A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk". Application of the single rule in the instant case exemplifies its good sense, for the duty of keeping the roads of Ice Caves Mountain in repair should not vary with the status of the person who uses them but, rather, with the foreseeability of their use and the possibility of injury resulting therefrom.
Basso, 40 NY2d at 241, 352 NE2d at 872, 386 NYS2d at 568; Kurshals, 227 AD2d at 593, 643 NYS2d at 623 (2nd Dept. 1996); Rovengno, 268 AD2d at 576, 703 NYS2d at 497 (2nd Dept. 2000).
Whether or not the condition itself was open and obvious, that does not absolve the defendant from its duty to reasonably maintain the premises. As expressed in Cupo v. Karfunkel, 1 AD3d 48 (2nd Dept. 2003), once a plaintiff presents evidence of a dangerous condition, the burden shifts to the landowner to demonstrate that he acted with reasonable care to make the property safe based upon the likelihood of injury to others and the burden of avoiding the risk. See, Id. at 52. Whether a condition is open and obvious has nothing to do with this duty. The duty is not abrogated by the characterization of the hazard as open and obvious since by doing so leads to the ridiculous result of encouraging landowners to make hazards on their properties as dangerous as possible to avoid liability if someone is injured as a result of that hazard. See, Id. In Stern v. Ofori-Okai, 246 AD2d 807, 808 (3rd Dept. 1998), the Court held that even awareness of a hazardous condition does not absolve a landowner from liability in maintaining its premises, but is relevant only on the issue of comparative negligence. In Morgan v. Genrich, 239 AD2d 919 (4th Dept. 1997), the Court held that the fact that a hazard is readily observable "may be relevant on the issue of plaintiff's comparative negligence, but it does not negate the duty of the defendants to keep their premises reasonably safe." Id. at 920; see, Chambers v. Maury Povich Show, 285 AD2d 440, 440 (2nd Dept. 2001); Acevedo v. Camac, 293 AD2d 430, 431 (2nd Dept., 2002); Tuttle v. Anne LeConey, Inc., 258 AD2d 334, 335 (1st Dept. 1999); Crawford v. Marcello, 247 AD2d 907, 907 (4th Dept. 1998); Tenebruso v. Toys "R" Us Nytex, Inc., 256 AD2d 1236, 1237 (4th Dept. 1998); Vereerstraeten v. Cook, 266 AD2d 901, 901 (4th Dept. 1999); Orellana v. Merola Associates, Inc., 287 AD2d 412, 413 (1st Dept. 2001).
As the First Department expressed in Westbrook v. WR Activities-Cabrera Markets, 5 AD3d 69 (1st Dept. 2004), the issue of whether a condition is open and obvious is generally a jury question and should only be resolved as a matter of law when the facts compel such a conclusion. See, Id. at 72. For a condition to be open and obvious as a matter of law requires that it could not be overlooked by anyone making a reasonable uses of his senses. See, Garrido v. City of New York, 9 AD3d 267, 268 (1st Dept. 2004).
Furthermore, the extent to which a defect is open and obvious addresses the issue of plaintiff's comparative negligence, not the defendant's overall duty to maintain its premises in a reasonably safe condition. See, Acevedo, 293 AD2d at 431.
An example given by the Westbrook Court included a case ( Thornhill v. Toys "R" Us NYTEX, 183 AD2d 1071) where summary judgment was denied to a defendant when a plaintiff tripped over a raised platform in a department store, despite the fact that the plaintiff initially noticed the platform and avoided it, given that the photographs demonstrated that the platform itself was not readily discernible.
In Juoniene v. HRH Construction Corp., 6 AD3d 199 (1st Dept. 2004), the Court found that plaintiff's striking her head on a standpipe which extended horizontally from a building was not an open and obvious hazard since the sun glare prevented her from seeing the object, since some hazards due to their nature of location, are likely to be overlooked. See, Id. at 200-201.
In Garrido, supra, plaintiff tripped over a broken and fallen construction sign which was on the sidewalk. The sign was 6' long and 4' high lying on the ground. The Court reversed the trial court's decision to grant summary judgment noting that while the sign itself was clearly visible, the plaintiff's failure to observe it was relevant only to the issue of plaintiff's comparative negligence, and not the defendant's overall duty to reasonably maintain the sidewalk. See, Garrido, 9 AD3d at 268.
In Moloney v. Wal-Mart Stores, Inc., 2 AD3d 508 (2nd Dept. 2003), plaintiff was injured when she tripped over a wooden pallet placed by defendant on the floor between two tables displaying merchandise. The Court held, in reversing the lower court's decision to grant defendant a judgment on the law at the close of plaintiff's case, even if a jury found the pallet to have been open and obvious, it was relevant only to comparative negligence and a rational jury may not completely absolve the defendant from liability. See, Id. at 508. In the instant case, the issue of whether the stacked box was open and obvious is a jury question, and even an affirmative determination that it was open and obvious (a question which this court does not reach) does not absolve defendant from liability.
In Monge v. Home Depot, Inc., 307 AD2d 501 (3rd Dept. 2003), plaintiff attempted to maneuver around a plant display placed by defendant, and in so doing, her shopping cart's wheel went off the curb and caused her to fall and be injured. The Court held that defendant created the condition by placing and arranging the plant display and the issue of whether the perils of the aisle were open and obvious was best left for jury determination. See, Id. at 502; See also, De Conno v. Golub Corp., 255 AD2d 734, 735 (3rd Dept. 1998) (plaintiff, who tripped on a cone placed by defendant in an aisle of one of its stores, was entitled to a jury trial and denial of summary judgment by defendants since the placement of the cone and its obscuring by customers and other merchandise stacked nearby, created an issue of fact).
Moreover, even if the condition was open and obvious, the question remains whether it was inherently dangerous and whether plaintiff bears any responsibility for the accident's occurrence. NY C.P.L.R. § 1411 states as follows:
In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.
In New York, it is well settled that the issue of comparative negligence is a question of fact proper for the jury's determination. Louise B.G. v. New York City Bd. of Educ., 143 AD2d 728, 730 (2nd Dept. 1988) (citing Willis v. Young Men's Christian Ass'n of Amsterdam, 28 NY2d 375, 270 NE2d 717, 321 NYS2d 895 (1971)). A determination of whether plaintiff is contributorily negligent is almost invariably question of fact, and is for jury to determine in all but clearest cases. See, Williams v. City of New York, 101 AD2d 835, 836 (2nd Dept. 1984); See, also, Weber v. City of New York, 101 AD2d 757, 757 (1st Dept. 1984), affirmed 63 NY2d 886 (1984); Snyder v. Moore, 72 AD2d 580, 581 (2nd Dept. 1979).
Where some proof is elicited on issue of whether plaintiff assumed a risk, a jury must determine under the reasonable person standard whether plaintiff was aware of the facts and appreciated the danger which made plaintiff's act unreasonable. Leiner v. First Wythe Ave. Service Station, Inc., 121 Misc 2d 559, 560-561 (Civ.Ct. Kings Co., 1983), affirmed 127 Misc 2d 794 (Sup Ct. Appellate Term, 2nd 11th Dist, 1985).
According to Alexander, Practice Commentaries (7B McKinney's Cons Laws of NY, CPLR C1411:1 (1997)), "Under the statute, in any action to recover damages for personal injury, injury to property or wrongful death, the culpable conduct of the plaintiff (or decedent) generally does not bar recovery; rather, such conduct diminishes plaintiff's recovery in proportion to the culpable conduct of the defendants. CPLR 1411 adopts a rule of pure comparative fault, so that in theory a plaintiff who is 99% responsible for his own injuries may still recover 1% of his damages."
In negligence actions, New York has abandoned contributory negligence and assumption of risk for a form of comparative negligence, the purpose of which is to ameliorate the harsh results when a plaintiff is slightly negligent and fairly to apportion damages among the parties. Knieriemen v. Bache Halsey Stuart Shields Inc., 74 AD2d 290, 295 (1st Dept. 1980), appeal dismissed 50 NY2d 1021 (1980), appeal dismissed 51 NY2d 970 (1980)
According to Alexander, Practice Commentaries (7B McKinney's Cons Laws of NY, CPLR C1411:1 (1997)), there are only four primary situations
. . . in which the plaintiff's culpable conduct will completely bar recovery against the defendant. First, plaintiff's conduct may be the sole cause of the injuries. See, e.g., Howard v. Poseidon Pools, Inc., 1988, 72 NY2d 972, 534 NYS2d 360, 530 NE2d 1280 (experienced swimmer's diving head first into shallow, above-ground pool was sole proximate cause of injury; defendant manufacturer's failure to warn of danger was irrelevant).
Second, no recovery whatsoever is available to a plaintiff" whose injuries are the direct result of his commission of . . . serious criminal or illegal conduct." Barker v. Kallash, 1984, 63 NY2d 19, 26, 479 NYS2d 201, 204, 468 NE2d 39, 42 (plaintiff injured by explosion while constructing pipe bomb). See also La Page v. Smith, 1990, 166 AD2d 831, 563 NYS2d 174 (3rd Dep't), appeal denied 78 NY2d 855, 573 NYS2d 645, 578 NE2d 443 (intoxicated plaintiff injured while participating in illegal auto race at speeds in excess of 100 m.p.h.). This principle is based on the public policy that denies judicial relief to persons injured in the course of serious criminal activity, and it exists independently of, and supersedes, the doctrine of comparative fault.
Third, an "express" assumption of risk by the plaintiff precludes any recovery. Arbegast v. Board of Education of South New Berlin Central School, 1985, 65 NY2d 161, 490 NYS2d 751, 480 NE2d 365. A plaintiff "expressly" assumes the risk of her injuries when she agrees, in advance, that the defendant "need not use reasonable care for the benefit of plaintiff." Id. at 169, 490 NYS2d at 757, 480 NE2d at 371. In effect, the plaintiff's express consent to the risks involved in the activity eliminates the defendant's duty of care. Id. at 170, 490 NYS2d at 757, 480 NE2d at 372. In Arbegast, express assumption of risk was found where the plaintiff participated in a fund-raising basketball game in which the players rode on the backs of donkeys after having been informed beforehand that they participated at their own risk.
Fourth, and closely related to express assumption of risk, is "primary" assumption of risk. Turcotte v. Fell, 1986, 68 NY2d 432, 510 NYS2d 49, 502 NE2d 964. This doctrine has most often been invoked in connection with voluntary participation in competitive athletics — professional, amateur, interscholastic and even informal. See, e.g., Strauss v. Town of Oyster Bay, 1994, 201 AD2d 553, 607 NYS2d 730 (2nd Dep't) (Little League baseball); Sutfin v. Scheuer, 1988, 145 AD2d 946, 536 NYS2d 320 (4th Dep't), affirmed 74 NY2d 697, 543 NYS2d 379, 541 NE2d 408 (game of catch). By electing to participate, the plaintiff is deemed to have consented "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." Turcotte v. Fell, supra, 68 NY2d at 439, 510 NYS2d at 53, 502 NE2d at 968. Such "primary" assumption of risk eliminates the defendant's duty of care to the plaintiff, thus rendering the concept of comparative fault irrelevant and completely barring any recovery against the defendant. Id. at 437-39, 510 NYS2d at 52-53, 502 NE2d at 967-68. "The policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities." Benitez v. New York City Board of Education, 1989, 73 NY2d 650, 657, 543 NYS2d 29, 33, 541 NE2d 29, 33.
The doctrine of primary assumption of risk, of course, has certain qualifications. Participants do not consent to reckless or intentional acts, nor do they assume risks that are concealed or "unreasonably increased" beyond those normally associated with the activity. Id. at 657-58, 543 NYS2d at 33, 541 NE2d at 33. "The applicability of the doctrine depends on the nature and scope of the participant's awareness and consent. . . . Whether it can be concluded that a plaintiff made an informed estimate of the risks involved in an activity before deciding to participate depends on the openness and obviousness of the risk, plaintiff's background, skill and experience, plaintiff's own conduct under the circumstances and the nature of defendant's conduct. . . . Perhaps the most important factor . . . is whether the risk is inherent in the activity." Lamey v. Foley, 1993, 188 AD2d 157, 163-64, 594 NYS2d 490, 495 (4th Dep't).
In Patterson v. Troyer Potato Products, Inc., 273 AD2d 865 (3rd Dept. 2000), plaintiff tripped and fell when her lower right leg struck a shelf protruding into an aisle of defendant Food Mart as she was passing an employee of defendant food supplier who was stocking merchandise on the store's shelves. Defendants moved for summary judgment, and the trial court denied the motion as to both defendants. The Court affirmed regarding defendant Food Mart but modified as to defendant Troyer. Food Mart had asserted that the condition was open and obvious, but the Court found that the shelf that had allegedly caused plaintiff to trip was near floor-level and protruded only three to four inches. Both plaintiff and defendants' employees also stated that they did not see what plaintiff had tripped on. The Court said even if the shelf was readily observable, such a fact would go to the issue of comparative negligence and would not negate the duty of defendants to keep their premises reasonably safe. Summary judgment as to these defendants was thus improper.
In Tirella v. American Properties Team, Inc., 145 AD2d 724 (3rd Dept. 1988), plaintiff attempted to take her first bath in an apartment. She turned on the bath water without first checking the water temperature and left the room until the tub was filled. Plaintiff returned to the tub and placed her feet in the water without first testing the water temperature. The water was extremely hot and she sustained second and third degree burns. The defendants moved for summary judgment. The trial court denied defendants' motions and the Third Department affirmed. In so holding, the Third Department stated that plaintiff's culpable conduct in failing to test the water prior to placing her feet in the tub was not a superceding intervening cause of the accident sufficient to negate the defendants' duty of care and bar recovery by plaintiff as a matter of law. Id. at 725. The Court considered plaintiff's failure to check the water temperature before immersing her feet a normal and reasonably foreseeable consequence of the situation created by defendants' negligence in permitting the water to become too hot. Id. Moreover, any failure by plaintiff may be considered by the jury on the issue of comparative negligence and plaintiff's conduct does not break the causal nexus chain. Id.
Nothing submitted herewith demonstrates that plaintiff was the sole proximate cause of his accident and therefore it is a question of fact for the jury to resolve. Defendant's motion is denied.
This matter is set down for jury selection on June 5, 2006 at 9:00 a.m. at the Orange County Government Center, Courtroom No. 4.
The foregoing constitutes the decision and order of this Court.